Citation Nr: 1301800 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-05 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial rating in excess of 10 percent for right hallux valgus. 3. Entitlement to a compensable initial rating for left hallux valgus. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Specifically, in August 2006, the RO denied entitlement to service connection for hypertension. The Veteran appealed, and the Board issued a decision in May 2010 in which it denied the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a March 2012 Memorandum Decision, the Court vacated the Board's May 2010 decision and remanded the case to the Board for further adjudication. Additionally, in April 2010, the RO granted service connection for bilateral hallux valgus, assigning a 10 percent rating for the right foot, and a noncompensable rating for the left foot. The Veteran appealed the initial ratings; however, a statement of the case has not been issued. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Court's Memorandum Decision noted that the denial of the Veteran's claim for service connection for hypertension was primarily based on a December 2008 VA medical opinion. The Court questioned the adequacy of the December 2008 VA medical opinion, which is the only medical opinion of record regarding the Veteran's hypertension disability. The Court noted that the VA examiner made two points in explaining his conclusion. First, that there was no in-service diagnosis of hypertension; second, that the elevated ratings present in the service treatment records were due to physical discomfort or pain during the examinations. The Court pointed out that the 1988 separation examination included an elevated blood pressure reading and a recommendation that further serial blood pressure values be taken. The Court stated that the lack of an in-service diagnosis of hypertension is hardly surprising given that the recommendation was apparently not followed. The Court also questioned the logic of the negative medical opinion based on the elevated blood pressure readings being due to discomfort and pain. The Court noted that the elevated blood pressure reading on separation examination was not during a time of discomfort or pain. The Court stated that in evaluating a medical examination report, the Board must assure that the examiner's opinion is based on sufficient data, the product of reliable principles and methods, and results from the examiner's application of those principles and methods to the facts of the case. The Board believes that a new medical opinion, which is based on sufficient data, that is the product of reliable principles and methods, and that results from the examiner's application of those principles and methods to the facts of the case, must be obtained. In August 2007 the Veteran asserted that he was refused re-enlistment into service based on an August 1989 examination at Fort Hamilton in Brooklyn, New York, because of high blood pressure readings. In a footnote on page four of its Memorandum Decision, the Court noted that although attempts had been made to obtain such examination report, VA had not sent a request to the National Personnel Records Center (NPRC), and consequently the duty to assist had not been met. The Court further stated that VA had not provided the statutorily required notice to the Veteran of the VA's inability to locate such records. Accordingly, further attempts should be made to obtain the reported Fort Hamilton records. If such records are still found to be unavailable the Veteran must be provided the required notice of their unavailability. An April 2010 rating decision granted the Veteran service connection for right hallux valgus and left hallux valgus. In October 2010, the Veteran disagreed with the initial ratings assigned for these foot disabilities. The Veteran has not been issued a statement of the case with regard to his claim for an initial rating in excess of 10 percent for right hallux valgus, or with regard to his claim for a compensable initial rating for left hallux valgus. Because there has been an initial RO adjudication of these claims and a notice of disagreement with the ratings assigned, the Veteran is entitled to a statement of the case, and the current lack of a statement of the case regarding these claims is a procedural defect requiring remand. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Request copies of the Veteran's reported August 1989 examination at the Fort Hamilton U.S. Army Base in Brooklyn, New York. Requests should be made to the NPRC and to any other appropriate sources. If the attempts to obtain the August 1989 examination report are unsuccessful, provide the Veteran notice of such fact. Such notice must include a description of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the Veteran's claim, and notice that the Veteran is ultimately responsible for providing the evidence. 2. When the above action has been accomplished, refer the case to an appropriate specialist in the area of hypertension for a medical opinion based upon a review of the record. The reviewer should include discussion of the numerous high blood pressure readings during service, the note on the November 1988 separation examination of mild high blood pressure and the recommendation of serial blood pressure readings, and the high blood pressure readings on VA examination in December 1993. The examiner should provide an opinion as to whether is it at least as likely as not (a 50 percent or higher likelihood) that the Veteran's hypertension first developed during service or within a year of discharge from service, or is otherwise etiologically related to service. The reviewer should provide the reasons for his or her opinion, noting upon what facts in the claims file and medical principles the opinion is based. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Provide the Veteran a statement of the case that addresses the issue of entitlement to an initial rating in excess of 10 percent for right hallux valgus and the issue of entitlement to a compensable initial rating for left hallux valgus. The Veteran and his representative should be provided notice of the Veteran's right to file a substantive appeal. These particular claims should be returned to the Board only if the Veteran perfects his appeal by filing a timely substantive appeal. 4. Following the above development, review the claims file and readjudicate the Veteran's claim of service connection for hypertension. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC). The SSOC should include review of all evidence received since the March 2010 SSOC. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).