Citation Nr: 1305503 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 06-24 555 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for a cardiovascular disability, to include as secondary to service-connected spine disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active from July 1999 to June 2002. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2004 rating decision in which the RO denied service connection for a cardiovascular disability. The Veteran filed a notice of disagreement (NOD) in June 2005, and the RO issued a statement of the case (SOC) in May 2006. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2006. In January 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is of record. In November 2010, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In October 2011, the AMC issued a supplemental statement of the case (SSOC) reflecting continued denial of the claim and returned the claims file to the Board for further appellate review. In February 2012, the Board again remanded the claim on appeal to the RO, via the AMC for further action. The AMC issued another SSOC in December 2012 that continued to reflect denial of the claim. The AMC has again returned this matter to the Board for further appellate consideration. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In November 2010 and February 2012, the Board remanded the claim of entitlement to service connection for a cardiovascular disorder for additional development. The Board specifically directed, in both the November 2010 remand and the February 2012 remand, that the RO/AMC obtain a medical opinion that included discussion as to whether or not the Veteran had any current cardiovascular disability that, at least as likely as not, had its onset during service. A December 2010 VA examination report was added to the claims file after the first, November 2010, Remand. However, as specifically observed by the Board in the February 2012 Remand, the December 2010 medical opinion was inadequate because "the examiner did not offer rationale for why service connection was not warranted on a direct basis" - the examiner's discussion consisted of an explanation as to why hypertension did not occur secondary to spinal pain. The examination report also did not, as directed, "address the effect, if any, of medication taken for the service-connected spinal disabilities on current cardiovascular disability." The Board directed the AMC to return the claims file to the December 2010 VA examiner for a clarifying medical opinion as to "whether it is as least as likely as not that [hypertension or other cardiovascular disability] had its onset in, or is otherwise related to service." The Board directed the examiner to discuss pertinent in-service and post-service records and to provide a complete rationale. Subsequently, a March 2012 VA medical opinion and an October 2012 addendum opinion were obtained and added to the claims file. Unfortunately, these opinions are also not responsive to the Board's directives. Specifically, the March 2012 VA opinion again focuses solely on reasons why hypertension does not exist secondary to spinal pain and the October 2012 addendum states that "hypertension was not caused by nor permanently aggravated beyond natural progression by his service-connected spine condition." As observed by the Veteran's authorized representative in a January 2012 brief, the March and October 2012 medical opinions still fail to address the matters of whether hypertension, or other cardiovascular disability, is directly related to the Veteran's service, or is related to the administration of medications used to treat his service-connected spinal pain. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face). A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the record still does not contain an adequate medical opinion to resolve the claim on appeal, the Board again finds that corrective action is necessary to obtain the required medical opinion. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the RO should arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility in order to obtain an adequate opinion regarding the etiology of the Veteran's claimed cardiovascular disability, diagnosed as hypertension. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of his claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records. The Board notes that the claims file reflects that there are outstanding VA medical records which may be particularly pertinent to the matter on appeal. Specifically, the claims file does not contain any VA treatment records dated between December 31, 2002 and April 21, 2006 other than a June 10, 2003 pharmaceutical consultation note and an October 20, 2003 case management note. However, VA's computerized "problem list" of the Veteran's past medical history indicates that he was diagnosed with hypertension on November 23, 2004. As the Veteran has contended that he experienced hypertensive symptoms ever since his active duty service, and is entitled to service connection for hypertension on a direct basis, documentation of his clinical diagnosis is especially pertinent to the appeal. Further, although the Veteran has indicated that he continues to receive VA care, no treatment notes dated after November 23, 2010 appear in the claim file. 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). Hence, the RO should obtain from the Long Beach VAMC all outstanding records of relevant VA evaluation and/or treatment of the Veteran for association with the claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Therefore, the RO should also give the Veteran another opportunity to present additional information and/or evidence pertinent to the claims on appeal. The 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 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). 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 on appeal in light of all pertinent evidence and legal authority. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Obtain from the Long Beach VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated between December 31, 2002 and April 21, 2006, as well as dated from November 23, 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or 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 claims on appeal that is not currently of record. 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 he responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, 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. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA cardiovascular examination, by an appropriate physician, at a VA medical facility. The entire claims file must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should clearly identify all current cardiovascular disability(ies), to include hypertension. For each diagnosed disability, the physician should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically related to, service. The examiner should specifically address the Veteran's contention that he experienced elevated blood pressures during, and ever since, active duty. If it is determined that hypertension is not likely related to the Veteran's active duty service, the physician should also offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any cardiovascular disability, to include hypertension, was caused, or is aggravated (worsened beyond natural progression), by any pain medications used to treat the Veteran's service-connected spine disabilities. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinions, the examiner should consider and discuss all pertinent lay and medical evidence of record. The physician should set forth all examination findings (if any), along with complete rationale for the opinion(s) provided, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notices of the date and time of the appointment sent to him by the pertinent VA medical facility. 6. 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. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for the determination, and afford them the appropriate time period for response 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 benefit 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 REMAND 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 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).