Citation Nr: 1303003 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 06-07 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, the Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A December 2012 Supplemental Statement of the Case (SSOC) indicates the RO reviewed VA outpatient treatment records dated from August 26, 2004 to November 27, 2012 from the North Texas Health Care System. Unfortunately, the treatment records available for review in the Veteran's Virtual VA file and claims file are dated only through June 28, 2012. The Veteran's claims file or Virtual VA file must contain all evidence reviewed by the RO in conjunction with the Veteran's claim. The Board is prohibited from obtaining these records directly. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2012). The issue on appeal is therefore remanded to the RO/AMC in order to associate all records reviewed in conjunction with the Veteran's claim. In addition, the record shows that the Veteran receives ongoing treatment at the Dallas VA Medical Center. Therefore, while the appeal is in remand status, records from June 2012 to the present should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). If the above development uncovers any new medical opinions regarding the origins or etiology of the Veteran's hypertension, including whether or not it is caused or aggravated by his service-connected PTSD, the RO/AMC should obtain an addendum opinion to the March 2012 VA examination. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should associate with the record all the records reviewed in conjunction with the adjudication of the Veteran's claim, to include outpatient treatment records dated from June 28, 2012 to November 27, 2012 from the North Texas Health Care System. If they cannot be located, that fact should be noted in the record. 2. The RO/AMC should obtain and associate with the record the Veteran's post-June 2012 treatment records from the Dallas VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. If they cannot be located or no such records exist, the Veteran should be notified in writing. 3. After undertaking the above development, if that development uncovers any new medical opinions regarding the origin or etiology of the Veteran's hypertension, including whether or not it is caused or aggravated by his service-connected PTSD, the RO/AMC should obtain an addendum opinion to the March 2012 VA examination by the same examiner or another qualified examiner if the examiner is not available. The claims file and a copy of this Remand should be provided to the examiner in connection with the addendum opinion request. After a review of the record and if necessary, an examination of the Veteran, the examiner should answer the following questions: a. Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's hypertension was caused by his active duty or has continued since active duty? b. Is it at least as likely as not (50 percent or greater degree of probability) that hypertension manifested itself to a compensable degree in the first year following the Veteran's separation from active duty? c. Is it at least as likely as not (50 percent or greater degree of probability) that hypertension was caused by the Veteran's service-connected PTSD? d. Is it at least as likely as not (50 percent or greater degree of probability) that hypertension was aggravated by the Veteran's service-connected PTSD? In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the Veteran is competent and credible to report on the observable symptoms of his hypertension while on active duty and since separation from active duty, even when his records are negative for symptoms or a diagnosis of hypertension. Aggravation is defined for legal purposes as a chronic worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of current hypertension (i.e., a baseline) before the onset of the aggravation. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 4. Then, adjudicate the claim of entitlement to service connection for hypertension, to include as due to service-connected PTSD, taking into consideration all evidence added to the claims file since the December 2012 SSOC. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided with a SSOC. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).