Citation Nr: 1302995 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 08-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to an undiagnosed illness. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran was a member of the Tennessee Army National Guard (TNARNG) from June 1966 to December 1995. He had two periods of Federal active duty during that time, from February 1967 to July 1967, and from August 1990 to June 1991. He served in Kuwait in 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran testified at a November 2009 personal hearing held before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is associated with the claims file. The issues of entitlement to service connection for high blood pressure and a low back disability were remanded in January 2010 and April 2012 Board decisions. The high blood pressure claim has been recharacterized as hypertension to more accurately reflect the Veteran's claim and the medical evidence. 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 RO formally found that service treatment records from the Veteran's period of active duty in 1990 and 1991 were unavailable. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran is seeking service connection for hypertension. In a March 2010 statement, the Veteran's treating physician opined that the Veteran's hypertension stemmed directly from his posttraumatic stress disorder (PTSD). The RO subsequently granted service connection for PTSD in a February 2012 rating decision. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The RO must provide the Veteran with appropriate notice regarding secondary service connection prior to appellate review. 38 U.S.C.A. § 5103(a). A VA examination with an opinion addressing the possible relationship between the Veteran's service connected PTSD and his hypertension is warranted. The Veteran contends that he injured his back during his period of active duty in Kuwait in 1990-91. In a written statement dated in March 2008, the Veteran described injuring his lower back shoveling sand into sandbags in Kuwait. In a lay statement received in February 2006, a soldier who served with the Veteran stated that he believed the Veteran had injured his back either when a large metal pole fell on their tent or while removing the pole from the tent. A December 1994 Persian Gulf examination noted low back syndrome. A VA general medical examination in June 2005 diagnosed degenerative disc disease of the low back. An October 2008 X-ray report (found in the Veteran's Virtual VA electronic folder) noted degenerative changes at multiple levels of the lumbar spine. Given the heightened duty to assist the Veteran in light of his missing service treatment records, the Board finds that VA's duty to provide the Veteran with a VA examination and related medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding a claim for secondary service connection, including the provisions of 38 C.F.R. § 3.310. The Veteran and his representative must be given an opportunity to respond. 2. Schedule the Veteran for a VA examination in order to ascertain the etiology of the Veteran's hypertension and its relationship, if any, to his service-connected PTSD. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the relevant evidence, the clinical evaluation and any tests that are deemed necessary, the examiner is to address the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that hypertension had its onset in or is otherwise attributable to service? (b) Is it at least as likely as not (a 50 percent or greater probability) that hypertension was caused by his service-connected PTSD? (c) Is it at least as likely as not that the Veteran's service-connected PTSD aggravated his hypertension? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of hypertension disability present (i.e., a baseline) before the onset of the aggravation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an appropriate VA examination to determine the etiology of any currently diagnosed back disability, to include its potential relationship to service. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed back disability had its onset in or is otherwise attributable to service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2010). _________________________________________________ RONALD W. SCHOLZ 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) (2010).