Citation Nr: 1304085 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 04-12 067A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disability(ies). 2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disability(ies). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from September 1975 to December 1975. He served on active duty from May 1972 to August 1972 and again on active duty from January 1976 to January 1979. He also had subsequent service in the Pennsylvania Army National Guard (ANG), with unverified periods of ACDUTRA and inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a June 2005 rating decision in which the RO, inter alia, denied service connection for major depressive disorder and for hypertension. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal except as noted herein. In October 2007, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In April 2008 and again in January 2012, the Board, inter alia, remanded the claims now before the Board to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. Most recently, in the 2012 remand the Board recharacterized the claim for psychiatric disability-previously characterized as one for service connection for major depressive disorder-to more broadly encompass other diagnosed psychiatric disabilities, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board's decision on the claim for service connection for hypertension is set forth below. The claim for service connection for an acquired psychiatric disorder, to include major depressive disorder, to include as secondary to service-connected disability, is addressed in the remand following the order; this matter is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1.All notification and development actions needed to fairly adjudicate the matter herein decided has been accomplished. 2. Hypertension was not shown in active duty service or during a period of ACDUTRA or INACDUTRA, or until years after termination of either period of active duty; and the most persuasive opinion to address the question of whether there exists a nexus between the Veteran's service-connected disabilities, to include medication for service-connected disabilities, and any current hypertension weighs against the claim. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected disability(ies), are not met. 38 U.S.C.A. §§ 101(22) and (24), 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I, Due Process Considerations VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. This duty to notify was intended to be provided prior to an initial adjudication of a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). By letter in January 2005, prior to the initial June 2005 adjudication of the claims now before the Board, the RO advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that the submission of evidence in the claimant's possession that might help in claim substantiation. See 73 Fed.Reg. 23353 (Apr. 30, 2008). The Veteran was apprised of the downstream disability rating and effective date elements for the claims by RO letter of February 2012, prior to the most recent Supplemental SOC (SSOC) in October 2012. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). However, there is no prejudice to the Veteran with respect to the timing of this notice because an error in not providing preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication (in this case the October 2012 SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed.Cir. 2007) (an SSOC is a readjudication); see also Prickett, 20 Vet. App. at 377-78. Moreover, as the claim for service connection for hypertension is denied, no disability rating and effective date is being, or will be, assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the Veteran with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See also VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Thus, there has been full compliance with the duties to provide notice of what was need for claim substantiation. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for VA's duty to assist, the RO has obtained the Veteran's available service treatment records (STRs), VA treatment records, and private clinical records. Also of record and considered in connection with the appeal is the transcript of the October 2007 Board video-conference hearing. The case had been remanded in 2008 to further identify the Veteran's periods of military service. To the extent possible, this was done, as described and explained in the 2012 Board decision. As was noted in the 2012 Board decision, pursuant to the 2008 Board remand instructions, the AMC requested records from the National Personnel Records Center (NPRC), the Department of the Army, and the Pennsylvania ANG. However, no additional records were obtained, and no additional dates of ACDUTRA or INACTDUTRA could be confirmed. A response from the NPRC only verified active duty service from January 1976 to January 1979 and a period of ACDUTRA from September 1975 to December 1975. The record also reflects that the Veteran was made aware of the steps undertaken to obtain these records and VA's inability to find any further records, and was informed that he may submit any such records in his possession. Because the AMC informed the Veteran that it was not able to obtain any additional records, and the AMC staff followed up to ensure that the Veteran knew that it was therefore his obligation to obtain them and submit them to VA, the Board found in 2012, and does so again now, that the RO fulfilled its duty to assist in regard to attempting to obtain these non-federal records and substantially complied, to the extent possible, with the April 2008 remand instruction. 38 C.F.R. § 3.159(c)(1). When the case was remanded in 2008 and in 2012, it was requested that the Veteran be afforded the opportunity to submit additional evidence or inform VA of the existence of such evidence and VA would attempt to obtain it. This was done most recently in a February 2012 letter from the VA Appeals Management Center (AMC). It was also requested the up-to-date VA treatment records be obtained. These are now available for review in the form of "CAPRI" records contained within the Virtual VA system. The case was also remanded in 2012 to afford the Veteran VA examinations for the purpose of determining whether the claimed disabilities are related to military service or to service-connected disabilities, including medication for his service-connected knee disabilities. These examinations were conducted in March 2012. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4). Moreover, as to the adequacy of the 2012 VA examination addressing the claim for service connection for hypertension, the adequacy of that examination and the medical opinion obtained have not been challenged. As to this, even in light of the duty to independently consider issues suggested by the evidence of record, under Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009), "the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Rizzo [v. Shinseki,] 580 F.3d at 1290-91. The argument that a VA medical examiner's opinion is inadequate is sufficiently close to the argument raised in Rizzo that it should be treated the same." Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Hilkert v. West, 12 Vet. App. 145, 151 (1999). In Stegall v. West, 11 Vet. App. 268, 271 (1998) it was held that a remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand but substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Here, as to the claim for service connection for hypertension, there has been substantial compliance with the request in the Board remands in 2008 and 2012. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II, Background Service connection has been established for: (1) degenerative joint disease (DJD) of the right hip, with postoperative residuals of a total right hip replacement, rated 30 percent; (2) a right ankle disorder with calcaneal spurring, rated 10 percent; (3) a left ankle disorder, rated 10 percent; (4) chondromalacia of the left patella, status post partial synovectomy, rated 10 percent; (5) chondromalacia of the right patella, rated 10 percent. A review of the paperless, electronic (Virtual VA) file associated with this Veteran reveals that a June 2008 rating decision changed the previously assigned noncompensable ratings for the Veteran's service-connected (6) pes planus with hallux abducto valgus of the right lower extremity, and (7) pes planus with hallux abducto valgus of the left lower extremity to a single rating of 30 percent encompassing both of these disabilities) and also granted service connection for residuals, status post-excision soft tissue ganglion of the left foot, which was assigned a 10 percent rating; and also granted service connection for shortening of the right leg shortening, as secondary to the service-connected right hip DJD with total right hip replacement, with a noncompensable rating assigned from May 12, 2008; but this disability was to be included with the current evaluation for right hip DJD with total right hip replacement. On file is a July 2996 letter from an Administrative Officer of the Pennsylvania Army National Guard stating that the Veteran would be retiring in December 1996. Also on file is a certificate of Honorable Discharge from the Pennsylvania Army National Guard confirming that the Veteran retired from that organization in December 1996. On the other hand, there is also on file a certificate of Honorable Discharge from the Pennsylvania Army National Guard confirming that the Veteran retired from that organization in January 2002. The Veteran's STRs do not reflect diagnosis or treatment of hypertension. His blood pressure readings were within normal limits except that in June 1977, when he complained of a headache, his blood pressure was 120/90 and the assessment was a mild viral illness. Also, in October 1977 he had some lumps on the side of his neck and, on examination his blood pressure was 138/90. The assessment was a lipoma. However, the next day he had swollen lymph nodes, and his blood pressure was 130/90. The assessment was lymphadenopathy of questionable etiology. On examination in October 1978 the Veteran's blood pressure was 130/66. On a cardiac evaluation in January 1979, the Veteran had a functional murmur and no organic heart disease. His blood pressure was 120/80. An October 1984 VAOPT record reflects that the Veteran's blood pressure was 150/100. On VA orthopedic examination in February 1985 the Veteran's blood pressure was 130/88. VAOPT records of June 1987 to January 1988 reflect a blood pressure reading of 130/90 in October 1987 and of 140/90 in November 1987, with blood pressure readings thereafter in December 1987 of 134/80 and 118/70 in January 1988, but contain no reference to a history of hypertension. Other blood pressure readings in 1987 and 1988 were within normal limits. VA records include a November 1987 urology evaluation due to microscopic hematuria, which was the assessment. There was no notation of a history of hypertension. A VA intravenous pyleogram in January 1988, administered because of microscopic hematuria, was normal, and a renal ultrasound several days later, administered to rule out renal calculus of lower pole of the right kidney was also normal as to both kidneys. There was no notation of a history of hypertension. VAOPT records of 1992 make no reference to a history of hypertension. A January 2001 VAOPT noted that the Veteran was being followed-up for hypertension, for which he had taken medication for years. VA outpatient treatment records show that in November 2003 it was reported that the Veteran had a renal cyst. In August 2004 his hypertension was under good control with medication. In August 2005 the impressions were a bipolar disorder, NOS, and alcohol use and dependence. On VA examination in March 2005, addressing the claim for service connection for hypertension, to include whether it was due to medication for the Veteran's knees, the claim file was not available for review. The Veteran reported that after his active duty ended in 1979, he had been in the National Guard, from which he retired in 2001, after 23 years of service. He reported that he was diagnosed with hypertension in 1987. As a result of the examination, the Veteran was diagnosed with hypertension. The examiner was unable to resolve the issue of whether his hypertension is secondary to medication for his knee condition. The examiner noted that the medications he was taking at the time, and had taken in the past, have shown evidence of being causative of hypertension, but that it would be mere speculation. During the Veteran's October 2007 Board hearing, he testified that he felt that is medical problems were causing him to be depressed and that the depression impaired his ability to work. Page 12 of the transcript of the Videoconference (T12). He particularly felt that his service-connected right hip replacement and service-connected knee disabilities caused him to be depressed. T13. Because of his depression he had resorted to using alcohol but no longer did so. T14. He had been hospitalized in 2005 when he had tried to commit suicide due to depression. T15. Also, he testified that his service-connected disabilities were at least contributing to and aggravating his depression. T17 and 18. He had first been diagnosed with hypertension in 1987, while still a member of the Pennsylvania Army National Guard, by Dr. B. who had told him that his hypertension could be caused by medication he was taking for his service-connected knee disabilities. He also felt that his depression contributed to his hypertension. T26. He had been on ACDUTRA when he was first diagnosed with hypertension. T28. At that time, while in the National Guard, he had been cooking and had felt "funny" and went to an emergency room and was told that his blood pressure was elevated. T28. He felt that his hypertension was now being partially controlled by VA medication. T29. He had been in the Army National Guard for 20 years, from 1980 to 2001. T31. With respect to the Veteran's claim for service connection for hypertension, On VA examination in March 2012, the entire claims file was reviewed, including a complete copy of the remand and the STRs, prior to the examination. It was noted that his hypertension was diagnosed with routine blood pressure checks around 1987. He reported that his hypertension caused no symptoms. The etiology appeared to be essential hypertension. He had no other known heart conditions but he required medication to control hypertension. He had not had a myocardial infarction and did not have chronic congestive heart failure (CHF) or a heart valve condition. On physical examination his blood pressure reading were 119/82; 102/62; and 120/79. He did not have cardiac hypertrophy. A comparison of a January 2012 EKG with an EKG in July 2010 revealed no significant change. A chest X-ray was normal. The diagnosis was that the Veteran currently had hypertension. The examiner's opinion was that the Veteran's hypertension did not at least as likely as not (i.e., there is less than a 50 percent probability) have its onset in or was medically related to service or service-connected disability, to include medications used to treat his service connected disabilities. The rationale for the opinion was that, consistent with sound medical judgment, the Veteran was diagnosed with hypertension years after he was discharged from the military; he was not currently on any medications that would be expected to cause elevated blood pressure or hypertension; and, although his March 2005 VA examination raised the possibility that medication he was taking specifically for his service-connected knee condition, specifically propoxyphene, could have caused his hypertension, the Veteran was no longer taking propoxyphene, yet he still requires medication for blood pressure control. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as "[c]ardiovascular-renal disease, including hypertension", will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there be (1) medical evidence of a current disability, (2) medical or, in some circumstances, lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). With respect to the Veteran's ANG service, to establish basic eligibility for veterans benefits based on a period of duty as a member of the Army National Guard of any State, a claimant must show either that he was ordered into Federal service by the President of the United States, or that his duty was performed under the provisions of statutes governing active duty for training; or injury incurred or aggravated while performing inactive duty training (INACDUTRA). 10 U.S.C.A. § 12401; 32 U.S.C.A. §§ 316, 502, 503, 504, 505; .38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. See also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Also, the one-year presumptive period for manifestation of hypertension as chronic diseases under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309 does not apply to any period of ADCUTRA or INACDUTRA to any period of federalized active duty for training as member of the Pennsylvania Army National Guard because no disability was incurred during a period of ACDUTRA or INACDUTRA to confer status as a veteran for such a period of service to evoke the one-year presumption. 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.1(d) and 3.6(a). Under 38 U.S.C.A. § 1111 for the presumption of soundness applies to veterans and also requires that there have been an examination for service entrance which revealed no defects, infirmities, or disorders. Those who serve on ACDUTRA are not veterans (unless first service-connected for a disorder incurred or aggravated during that period of ACDUTRA) and are generally not provided examinations prior to their ACDUTRA service. Thus, the presumption of soundness does not attach to periods of ACDUTRA. Smith v. Shinseki, No. 08-1667, slip op. at 6 (U.S. Vet. App. Aug. 17, 2010). The Board must determine whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. If a veteran's STRs are unavailable, VA's duties to assist, the duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Where the "service medical records are missing... the Board [may not] wrongly equate the absence of medical corroboration with 'negative evidence.' Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone." Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991). However, the absence of STRs does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. Rather, there is only a heightened duty of the Board to consider the applicability of the benefit of the doubt doctrine. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Also, the absence of some STRs does not create an adverse presumption against VA. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Under VA regulations, 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. 38 U.S.C.A. § 4.104, Diagnostic Code 7101. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. It is neither shown nor contended that the Veteran's current hypertension had its onset during active duty from May to August 1972 or active duty from January 1976 to January 1979, or that it manifested within one year of termination of either period of active duty. Likewise, it is neither shown nor contended that hypertension had its onset during his period of ACDUTRA from January to December 1975. In this regard, during his active duty from 1976 to 1979 he had three borderline diastolic blood pressure readings of 90 in 1977. However, on each occasion it was noted that he had an infection. All blood pressure readings thereafter, for the remainder of his period of active duty, until 1979, were within normal limits. In fact, he was provided a cardiac evaluation in January 1979 and while he had a functional murmur and no organic heart disease was found and there was no finding that he had hypertension. Moreover, VAOPT records in 1984 and a VA examination in 1985 document that his blood pressure readings were within normal limits, except for an isolate reading in October 1984 when he had a slightly elevated diastolic reading of 100. However, this was at a time when he was seen at a VA clinic and, so, was not on active duty, ACDUTRA or INACDUTRA. The Board has considered that Veteran's testimony that hypertension was first diagnosed during a period of ACDUTRA in 1987. However, there is no corroborating evidence that such a diagnosis was made. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that when the underlying medical nature of evidence has been significantly diluted, e.g., the connection between a lay account of past medical information, and filtered through layman's sensibilities, it is too attenuated and inherently unreliable to constitute medical evidence). As to this, the recent 2012 VA examiner reported that the Veteran's hypertension was diagnosed with routine blood pressure checks around 1987. However, this is not consistent with the Veteran's testimony that he was evaluated in 1987 because of headaches, and not that hypertension was found on routine blood pressure checkups. Further, this history is not shown or corroborated by the other clinical records on file and, so, could only have been obtained by that VA examiner from the Veteran himself. Thus, the mere repetition by the examiner of a history related by the Veteran does not lend such history any greater probative value unless the examiner were to add some additional commentary or remarks supporting it. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that information simply recorded by a medical examiner and unenhanced by any additional medical comment, and thus not adding any medico-evidentiary value to the lay history through medical expertise, does not constitute competent medical evidence). However, this was not done and, so, the history related by the Veteran does not take on greater credibility or greater probative value. Lay evidence may establish continuity of symptomatology, as to observable signs and symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) (lay evidence is competent when a condition can be identified by a layperson); see also 38 C.F.R. §§ 3.159(a)(1) and (2) (defining, respectively, competent medical and lay evidence) and 3.307(b) (lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, No. 2011-7159, slip op. at 5 (Fed.Cir. Dec. 2, 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). Lay evidence can be competent to establish a diagnosis or identify a medical condition in three circumstances. The first is when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, and (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Here, the Veteran is not competent to identify the complex medical question of whether a person has hypertension, as this requires medical training, knowledge, and expertise; and, also he has not described symptom which have supported a latter diagnosis by a medical professional (circumstance 1 and 3 above). As to the second circumstance (reporting a contemporaneous medical diagnosis), the Board has considered the Veteran's testimony that he was diagnosed as having hypertension during a period of ACDUTRA. However, contrasted against this are the voluminous VA treatment records, and particularly those in 1987 and 1988 which show only a single, isolated but only borderline diastolic blood pressure reading of 90. None of these VA treatment records make any reference to the Veteran's having hypertension. Equally significant is the fact that the Veteran was provided a VA urology evaluation in November 1987 for hematuria, and an intravenous pyleogram and a renal ultrasound in January 1988, again for hematuria, and no abnormality of his kidneys was found, nor was there any record of his having hypertension or a history of having had hypertension. In this regard, 38 C.F.R. § 3.309(a) states that the term "[c]ardiovascular-renal disease, including hypertension [] applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.)" Nephritis is inflammation of the kidney. See Booton v. Brown, 8 Vet. App. 368, 369 (1995). Since the Veteran was evaluated for possible kidney pathology in 1987 and 1988, and because, as noted above, hypertension can be an early symptom of nephritis, it would be expected that when he was evaluated in 1987 and 1988 for possible kidney pathology (and, again, none was found) any history of hypertension would have been specifically noted. However, it was not. Indeed, even VAOPT records of 1992 make no reference to a history of hypertension. In fact, it was not until VAOPT records in November 2003 that it was reported that the Veteran had a renal cyst. The record shows that it was not until 2001 that the Veteran was shown to have a history of hypertension. Nothing, other than his uncorroborated statements and testimony which for the reasons stated the Board finds not to be credible, antedates his hypertension to any putative period of active duty, ACDUTRA or INACDUTRA. The recent VA examiner's opinion, after reviewing the claims files, was that the Veteran's hypertension did not at least as likely as not have its onset in or was medically related to service. In this case, there is no contrary, i.e., favorable, medical opinion which weighs against this unfavorable medical opinion. The Veteran has alternatively argued that his hypertension was caused or is aggravated by medication for service-connected disabilities. In this regard, the 2005 VA examiner reported that some of the Veteran's medications had been known to be causative of hypertension. Yet this same opinion was qualified by that same examiner when it was stated that it would be speculative to conclude that such medication caused the Veteran's hypertension. Moreover, the 2005 examiner did not have the claim files available for review. On the other hand, the more recent 2012 VA examiner found that the Veteran's hypertension was not at least as likely as not related to service or service-connected disability, to include medications used to treat his service connected disabilities. This was because he was not currently on any medications that would be expected to cause elevated blood pressure or hypertension; and, although the March 2005 VA examination raised the possibility that medication he was taking specifically for his service-connected knee condition, specifically propoxyphene, could have caused his hypertension, the Veteran was no longer taking propoxyphene, yet he still required medication for blood pressure control. The 2012 VA examiner specifically addressed the finding or opinion of the 2005 VA examiner, reviewed the claims file (which the 2005 VA examiner did not), and provided a logical rationale for the 2012 opinion. So, the 2012 opinion has greater weight than the comment of the 2005 VA examiner who found that a definitive opinion could not be reached or would be speculative. Accordingly, service connection for hypertension as secondary to service-connected disabilities or medication for service-connected disabilities is also not warranted. For all the foregoing reasons, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to include as secondary to service-connected disability(ies), is denied. REMAND A review of the STRs reflects that in January 1979 (during active duty from January 1976 to January 1979) the Veteran wondered if he had hepatitis because he felt weak, had lost weight, and was anorexic. The assessment was to rule out hepatitis and anxiety. On VA psychiatric examination in March 2005, to address whether the Veteran had a psychiatric disorder, including depressive symptoms, due to medication for his service-connected knee disabilities, the claim file was reviewed. The Veteran reported difficulties with his service-connected knee disabilities. He did not report having had any psychiatric problems related to or during his military service. He had had problems related to drinking alcohol in the past but the examiner had difficulty pinning down information with respect to the Veteran's drinking habits in the past versus the present, although he still drank alcohol. The examiner specifically noted that it was felt that a reliable account of the Veteran's drinking habits could not be obtained, although the Veteran was otherwise a reliable historian. The Veteran reported that knee pain and financial problems were the biggest issues in his life but also three people close to him had recently died. Although he had some depressive feelings, these appeared to be within normal limits. He did not currently endorse symptoms that would suggest major depression or a depressive disorder. He had no psychotic symptoms. The diagnoses were possible continued evidence of alcohol dependence, with questionable reliability of the patient; and possible personality disorder traits. While the examiner found evidence of some anxiety and some slight depressive symptoms, there was no sufficient evidence of a clear psychiatric disorder. A review of his medications did not reveal any significant correlation with respect to medical-induced depression, and there was no indication of any difficulties in this regard. VA outpatient treatment records show continued diagnoses of major depressive disorder, as well as bipolar disorder. In July 2006, the Veteran indicated that he was down (depressed) due to his service-connected right hip disability and that he could not do his job. Worsening bipolar disorder and depression was noted at that time. On VA psychiatric examination in March 2012, pursuant to the January 2012 Board remand, the Veteran's claim file was reviewed. It was noted that the Veteran's past psychiatric history was significant for one inpatient psychiatric hospitalization, which took place about six years ago in the context of feeling depression and suicidal. He had a history of alcohol dependence, which had been in remission for approximately two years. Although he denied any suicide attempts, he reported that he had he struggled with suicidal thoughts, on and off, for an unspecified period of time. He got along well, in general, with no complaints with the exception of the physical difficulties he had from his significant knee problems. There were no present psychosocial stressors beyond knee pain. He uses a TENS unit, which he reports significantly improves his pain and allowed him to function, but when he took off the TENS unit, he felt significant pain. Overall, he had responded quite well to treatment but he did indicate that his knee problems interfere in the quality of his everyday life and contributes to physical impairments on weekends. The Veteran reported that approximately two years ago, he began to experience what he perceived as his mind "racing". He reported that he had always struggled with depressive symptoms, but could not recall earlier feelings that his mind was racing. He felt that was had now gotten to the point that he found his mind was just racing so much that his body would not "slow down." He felt "pressured." He reported that he felt that he had too much energy. He did not readily admit to significantly elevated self-esteem or grandiosity. The examiner noted that it was difficult to pin the Veteran down in reference to length of possible hypomanic/manic symptomatology. He was generally unable to provide strict criteria, which the examiner was seeking to obtain in reference to diagnosis of bipolar I or type II. The Veteran had had never had any clear psychotic symptoms. He did admit to some troubles with his sleep, due to racing thoughts. He provided a sketchy history in terms of frequency and intensity of symptoms. In terms of the general course of hypomania versus depression, again it was very difficult to get a history of a specific beginning, onset, duration, intensity of symptoms. A general conclusion was that the Veteran had struggled with quite a bit of mood instability over the last two years. It was not clear, in terms of the progression or what occurred in terms of onset approximately two years ago. Certainly, bipolar could have an onset at any age, although it typically began much earlier. There were cases, however, where people presented with late-onset bipolar disorder. In reference to his depressive problems, the Veteran admitted that this has been a much more overriding problem with the various depressive symptoms, on and off, over the course of time. In the past, he did not specifically recall recurring bouts of major depression, as defined by DSM-IV, but he reported that approximately three years ago or so, he began to have much more intense problems with depression. It was not clear, in terms of the evolution of the symptoms but, overall, it appeared that in the last couple of years or several years, he had had more problems with sustained depression, as well as irritability, anxiety, racing thoughts, hypomanic symptoms, and mixed problems. After a mental status examination, the examiner did not see any evidence of Axis II pathology. The Veteran's mood was described as euthymic, and he did not admit to any hypomanic, manic or mixed symptomatology. He was tolerating his medications fairly well, with no significant complaints of problems, with the exception of feelings of fatigue. There was no evidence of any oral, buccal or peripheral dyskinetic movements on examination. After a mental status examination, the diagnoses were alcohol dependence, in full remission (greater than one year); and a bipolar disorder, not otherwise specified (NOS). In reference to the Veteran's diagnosis, the examiner noted that there was not sufficient evidence to diagnose type I or type II bipolar disorder. However, in the context of having what appear to be manic-type of symptomatology and his significant improvement with pharmacotherapy focusing on bipolar symptoms, the best diagnosis seemed to be a bipolar disorder, NOS. The examiner believed there was sufficient evidence to provide a diagnosis of mood disorder with significant bipolar problems. The Veteran did not meet criteria, based on his inability to define a consistent course for distinct manic episodes, but nonetheless he had had significant manic symptoms. He had some degree of heightened self-esteem, but had not really exhibited clear poor judgment secondary to hypomanic-type of euphoria. He has had increased goal-directed activities in the form of excessive energy and excessive working, as well as some degree of increased talkativeness or pressure to speak, etc. He did describe some degree of distractibility, and reported that he felt his thoughts were moving too quickly. He had had, on and off, problems with sleep for years, but did not report a decreased need for sleep, as much as being unable to sleep and then feeling sleepy. The examiner clarified that the examiner was a board-certified psychiatrist and had examine the Veteran, as well as reviewed the full claims file. The examiner further stated that he did not find clinical documentation that would suggest that the Veteran's bipolar disorder was related to his military service. Also, the examiner found no evidence of military stressors inducing the Veteran's psychological problems. Here, neither VA examiner, in 2005 or 2012, addressed or even noted that during active duty in October 1977 anxiety was to be ruled out. Additionally, the January 2010 Board remand had requested that opinions be rendered as to not only whether any currently diagnosed psychiatric disorder was related to military service but also whether any such psychiatric disability was proximately due to or the result of, or aggravated by, any of the Veteran's service-connected disabilities, either alone or acting in concert. In Stegall v. West, 11 Vet. App. 268, 271 (1998) it was held that a remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand but substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Here, however, the 2012 VA psychiatric examiner did not render an opinion as to whether any current acquired psychiatric disability was caused or is aggravated by any of the Veteran's service-connected disabilities, either alone or acting in concert. Thus, there has not been substantial compliance with the requests in the 2012 Board remand. Accordingly, the claims file should be returned to that examiner for an opinion which addresses this matter, and includes comment on the October 1977 clinical notation during active service that anxiety was to be ruled out. The RO should arrange for the Veteran to undergo further examination only if the prior examiner is unavailable, or is the 2012 examiner Prior to arranging for further medical opinion, the RO should obtain and associate with the claims file all outstanding VA medical records from the Lebanon VA Medical Center (VAMC). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide authorization for it to obtain any outstanding private medical records, including those from any private physician(s) who have treated him for a psychiatric disorder . Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's adjudication of the claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Obtain from the Lebanon VAMC all outstanding records of VA mental health evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for a psychiatric disability and hypertension. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Return the claims file to the examiner that conducted the March 2012 VA psychiatric examination for an addendum that addresses whether any currently diagnosed psychiatric disorder was related to military service but also whether any such psychiatric disability was proximately due to or the result of, or aggravated by, any of the Veteran's service-connected disabilities, either alone or acting in concert. If that examiner is unavailable, or an examination is deemed warranted, arrange for the Veteran should be rescheduled for further examination for facilitate reaching the requested opinion. The examiner should specifically respond to the question of whether it is more likely, less likely, or at least as likely as not that the Veteran's current psychiatric disorder was caused or is aggravated (permanently worsened beyond normal progression) by the Veteran's any of service-connected disabilities, either alone or acting together in concert. If the examiner finds that the Veteran's current psychiatric disorder was aggravated by his service-connected disabilities, either alone or acting together in concert. the examiner should quantify the extent of aggravation, if possible. The examiner is asked to consider that 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 conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. More likely than not, and as likely as not, support the contended causal relationship; whereas, less likely than not weighs against the claim. In rendering the requested opinion, the examiner should consider and discuss all pertinent lay and medical evidence, to include the October 1977 STR (during a period of active duty) which notes that anxiety was to be ruled out. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached (to include a discussion of the facts and medical principles involved), in a printed (typewritten) report.. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the remaining claim on appeal in light or all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish the Veteran an appropriate Supplemental Statement of the Case (SSOC) and afford him the appropriate period of time within which to respond before the claims file is returned to the Board for further appellate consideration.. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs