Citation Nr: 1303044 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-00 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hypertension, to include as secondary to in-service exposure to herbicides, fuel and/or other chemicals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issue has been recharacterized as noted on the title page to better reflect the Veteran's contentions. In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file, which reflects that the Board would keep the record open for a period of 60 days for the submission of additional evidence. See Hearing Transcript at 2. Additional evidence in the form of a private doctor opinion was received later that month. At the beginning of the appeal, the Veteran was represented by the American Veterans. In a January 2010 VA Form 21-22, the Veteran appointed the Veterans of Foreign Wars (VFW) as his representative, thereby revoking the earlier power of attorney. 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 Veteran contends that he has hypertension due to exposure to herbicides during his 13-month tour in Vietnam and/or exposure to fuel and other chemicals while hauling petroleum in Germany. Personnel records establish that the Veteran was stationed in Vietnam from November 1968 to August 1969. Thus, exposure to herbicides during service is conceded. See 38 C.F.R. § 3.307. The Veteran's DD 214 show that his military occupational specialty (MOS) was that of heavy vehicle operator. Accordingly, the Board concedes the Veteran was exposed to vehicle fuel during service. Service treatment records (STRs) contain a July 1966 enlistment examination, which shows that the Veteran's blood pressure was 120/84. A July 1969 separation examination report shows that the Veteran's blood pressure was 120/80. An October 1969 post-service VA examination report shows that the Veteran's blood pressure was 126/74. The Veteran has testified that he was told his blood pressure was "a little bit high" upon starting work at General Electric in 1973. He stated that he did nothing about it until approximately four years later, when he started feeling bad at work. He testified that he was diagnosed with hypertension at that time. A September 1983 private treatment record from Dr. E.J.N. shows that the Veteran had been diagnosed with hypertension by another physician four or five years earlier. The Veteran reportedly quit smoking in July 1989. In May 1997, it was noted that the Veteran had a strong family history of coronary artery disease. In November 1998, Dr. E.J.N. noted the presence of an occasional cardiac arrhythmia. In June 2002, the Veteran was diagnosed with exertional dyspnea, shortness of breath, and hypertension. He complained of chest pain and arrhythmia in August 2003, and he was diagnosed with hypertension with associated cardiac dysrhythmia in August 2004. In May 2006, Dr. E.J.N. wrote "I [do] not have any medical reason that he developed this type of increased blood pressure that has been consistent throughout his life." A May 2006 correspondence from Dr. E.J.N. contains the following statement: "[The Veteran] had [elevated] blood pressure onset at age of 27 years old and now still has [elevated] blood pressure. There is no family history of severe medical problem that appears to be etiology. I have no cause for [elevated] blood pressure." A November 2008 VA treatment record contains the following statement: "It is possible that patient developed hypertension prior to discharge from service." A May 2012 correspondence from Dr. E.J.N. indicates that he inherited the Veteran as a patient by another doctor in September 1983, at which time he presented with a history of elevated blood pressure. He wrote: "I nor the specialists cannot say with exact certainty that his exposure in Vietnam to Agent Orange was the cause of the onset of hypertension crisis but with a negative family history and an individual always physically in great shape I have no other explanation." The November 2008 VA clinician did not explicitly find a relationship between the Veteran's hypertension and service, but rather noted it is "possible" that the Veteran developed hypertension during service. This opinion is speculative in nature as the clinician merely indicated that there might be a relationship between the Veteran's hypertension and his service. Dr. E.J.N.'s opinion is also speculative in nature, as the basis for his conclusion is that he has no other explanation. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board concludes that a remand is necessary to accord the Veteran an opportunity to undergo an appropriate VA examination that includes a review of the claims file and a medical opinion regarding the etiology of his hypertension. In particular, the medical opinion should address whether any association exists between the Veteran's hypertension and his active duty, to include conceded exposure to herbicides and vehicle fuel. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Finally, additional treatment records need to be obtained. The Veteran claims that he was told he had high blood pressure upon starting work at General Electric in 1973. The RO should attempt to obtain any relevant medical evidence. See 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. Once a signed release is received from the Veteran, obtain and associate with the claims file outstanding employment and medical records from Exxon Mobil from January 1977 to July 2008. A copy of any negative response should be included in the claim file. 2. Then, schedule an appropriate VA examination to determine the nature, extent, and etiology of the Veteran's hypertension. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, and a notation should be made in the evaluation report that this review has taken place. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and answer the following questions: (a) Is it at least as likely as not, i.e., 50 percent or greater probability, that the currently diagnosed hypertension had its clinical onset during service or is otherwise related to the Veteran's active duty service, to include his conceded exposure to toxic substances such as herbicides and vehicle fuel? (b) Is it at least as likely as not, i.e., 50 percent or greater probability, that the Veteran developed hypertension within one year after his July 1969 discharge? In answering these questions, the examiner should consider all relevant in-service and post-service treatment records, to include the May 2012 letter from Dr. E.J.N. The examiner should also address the Veteran's credible statements regarding a continuity of symptomatology and/or treatment since shortly after discharge. The reviewer should set forth the medical reasons for accepting or rejecting the statements of continuity of symptoms and/or treatment since service. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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). _________________________________________________ J.A. MARKEY 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).