Citation Nr: 1303356 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-14 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1980 to October 1983 and in the United States Marine Corps from November 1985 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 2010 the Veteran and his spouse testified at a Travel Board hearing at the RO. A transcript of this hearing is associated with the claims file. In December 2010 the Board remanded the claims then on appeal to the RO via the Appeals Management Center in Washington, DC, for additional development. In a June 2012 rating decision, the RO granted the claim for service connection for obstructive sleep apnea and assigned an initial 50 percent rating, effective November 6, 2006. That claim is no longer before the Board. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND In a November 2012 post-remand brief, the Veteran's representative asserted that the February 2011 VA examination was inadequate because the examiner failed to provide an adequate rationale for his conclusion that he could not resolve when hypertension began without resorting to mere speculation because service treatment records were incomplete. The Board agrees that an additional VA medical opinion is required. The RO/AMC should arrange for such a medical opinion, and if necessary, a hypertension examination. In his September 2007 notice of disagreement and May 2008 substantive appeal, the Veteran asserted that he had borderline hypertension at his retirement examination or that service treatment records showed borderline hypertension. He stated that treatment was limited to diet and exercise. Then, during his August 2010 hearing, he testified that hypertension was diagnosed during his retirement examination in November 2002, and he began taking medication for hypertension about one year later. He also stated that he was told that he had borderline hypertension during service and was treated with diet and exercise. He believed that the high blood pressure readings began in the early 1990s. The Board notes that the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). Among the four blood pressure readings obtained during his first period of military service, systolic blood pressure never exceeded 120. In a December 1982 emergency care record for an ankle injury, blood pressure was recorded as 120/100. Service treatment records from his second period of service contained approximately 36 blood pressure readings. Among those, one reading included systolic blood pressure greater than 160 and three diastolic readings were 90 or greater. An August 1992 record reflects that the Veteran complained of back pain for the previous 24 hours following a motor vehicle accident; blood pressure was 120/90. During a January 2001 vasectomy consultation, blood pressure was recorded as 178/94. In a treatment note regarding a finger injury six days later, blood pressure was 110/73. Finally, in a follow-up note regarding a right hand fracture, blood pressure was 138/90. The last blood pressure data among the service treatment records appears to be from a March 2001 VA vasectomy operative report, which recorded pre-operative blood pressure as 111/81 and post-operative blood pressure as 124/79. The Veteran's original claim for service connection was received in October 2002 prior to his military retirement. He did not claim entitlement to service connection for hypertension. In connection with his claimed disabilities, he was afforded a VA fee-basis examination in November 2002 before his retirement. The Veteran stated that he had gained approximately 40 pounds in the prior two years. The examination report included the following three blood pressure readings: 130/80 sitting, 126/82 standing, and 124/80 lying. The interpretation of a November 2002 fee-basis pulmonary function test was borderline obstruction with partial improvement after bronchodilator. In a post-service VA treatment record dated in November 2003, blood pressure was recorded as 148/88, and the physician indicated that blood pressure was slightly elevated. A subsequent November 2003 primary care note reflects that the Veteran presented to establish care. Blood pressure was measured as 146/93. A March 2004 note recorded blood pressure as 144/86. The assessment was questionable hypertension, and the Veteran was asked to repeat blood pressure reading later in the day. The second reading that day was 146/91. The physician ordered a blood pressure cuff for the Veteran, and he was directed to follow up with a nurse for his blood pressure in two months. In July 2004, blood pressure was 153/95; the physician's assessment was hypertension, and he was started on HCTZ (hydrochlorothiazide). Subsequent VA medical records, including those associated with the electronic claims file, reflected ongoing evaluation and treatment for hypertension. During a November 2006 VA respiratory examination, the Veteran stated that he had a pulmonary function test in 2002 and was started on an albuterol metered dose inhaler; and that simultaneously with this treatment, hypertension was diagnosed. During the February 2011 VA examination, the Veteran stated that around 1999 or 2000, he weighed around 200 pounds and was found to have elevated blood pressure, which was treated with diet and exercise. The VA examiner indicated that he could not locate that report in the service treatment records. The Board located several 1999 service treatment records; however, none reflected that elevated blood pressure was identified or that the Veteran was advised regarding elevated blood pressure. An August 1999 weight control physical listed his blood pressure as 128/74. He was advised to quit smoking and lose weight. There do not appear to be any service treatment records dated in 2000. The Veteran also stated during the February 2011 VA examination that a physician told him at his retirement examination in November 2002 that he had hypertension. The February 2011 VA examiner indicated that he could not locate a retirement physical examination among the service treatment records. The Board notes, however, that a record of a June 2012 telephone contact with the Veteran indicates that he reported having his retirement physical at the San Diego RO. The Board believes that the Veteran appears to be referring to his November 2002 VA fee-basis examination, which was conducted just prior to retirement to evaluate his claimed disabilities. In summary, it appears that the Veteran's "retirement examination" consists of the VA fee-basis examination. This examination report, which does not reflect hypertension based on any of the three blood pressure readings, is associated with the claims file. Therefore, the Board finds that the claims file should be returned to the February 2011 VA examiner if available, or a different physician, to obtain a new medical opinion regarding the onset of the Veteran's hypertension. The Board also observes that after service connection for obstructive sleep apnea was granted, the Veteran's representative asserted on the Veteran's behalf that the current hypertension disability was caused or aggravated by the service-connected sleep apnea. Therefore, a VA medical opinion is also required to determine the relationship, if any, between the Veteran's obstructive sleep apnea and hypertension. Prior to requesting a VA medical opinion, or examination, the RO/AMC should request ongoing treatment records from the San Diego VA Health Care System dated from February 2011 to the present. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for hypertension and sleep apnea. After securing any necessary release, the RO/AMC should attempt to obtain any relevant records identified that are not duplicates of those contained in the claims file. In addition, obtain relevant treatment records from the San Diego VA Health Care System dated from February 2011 to the present. If any requested records are not obtainable, the Veteran and his representative should be notified of such. 2. After the above development has been completed to the extent possible, return the entire claims file and a copy of this Remand to the February 2011 VA examiner, if available, or to another VA physician to obtain a medical opinion regarding the onset, nature, and etiology of the Veteran's current hypertension. If the reviewing physician determines that an examination is necessary, one should be authorized, and all indicated studies should be performed, and all findings should be reported in detail. Following review of the claims folder, and an examination of the Veteran if necessary, the examiner should explain (1) whether there is evidence of hypertension during service, (2) whether there is evidence of hypertension within a year of separation from service in November 2002, and (3) whether any current hypertension was caused or worsened by service-connected obstructive sleep apnea. A medical rationale must be included with the opinions. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ JAMES L. MARCH 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).