Citation Nr: 1306428 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-24 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a brain tumor, claimed as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. He is in receipt of a Combat Infantryman Badge, which denotes his participation in combat. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the claims currently on appeal and also denied service connection for PTSD. After an appeal was perfected, service connection was established for PTSD in an April 2008 rating decision. As such, that issue is no longer before the Board. The Veteran requested a hearing before the Board in his July 2007 VA Form 9. He subsequently withdrew this request. The Board issued a decision in February 2012 that denied the claims for service connection for hypertension and a brain tumor. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court) and in a July 2012 joint motion the parties requested that the Court vacate the February 2012 Board decision and remand the claims for further development and readjudication. In a July 2012 Order, the Court granted the joint motion. The Board previously referred a claim for an increased rating for PTSD and a claim for entitlement to a total rating based on unemployability due to service-connected disability to the Agency of Original Jurisdiction (AOJ). There is no indication from review of the record before the Board that these issues have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are again referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND In the joint motion the parties agreed that the VHA opinion obtained by the Board as it related to the claim for service connection for hypertension is inadequate since the physician appeared to concede that there could be a relationship between hypertension and PTSD, but did not explain her reasoning for why such an association is not present in the appellant's case. The parties agreed that a remand was warranted for clarification as to the relationship, if any, between the Veteran's hypertension and his service-connected PTSD. The parties also agreed that the VA medical opinion on which the Board relied on in denying the claim for service connection for a brain tumor was also inadequate in light of Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009), since the author relied exclusively on the National Academy of Sciences (NAS) in finding that direct service connection cannot be established simply because the statistical analysis does not support presumptive service connection. The parties determined that a remand was needed to obtain a medical opinion as to whether it is at least as likely as not that the Veteran's in-service exposure to Agent Orange caused or contributed to the development of his brain cancer. As the claims are being remanded for the foregoing reasons, recent VA treatment records should also be obtained. Lastly, the Board notes that the joint motion indicates that if the Court remands the case, the Board shall obtain a copy of several documents, to include the appellant's initial brief, and incorporate it into the claims folder. No brief to the Court has been associated with the claims folder. On remand, efforts should be made to obtain any such brief, should it exist. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Obtain the Veteran's treatment records from the William Jennings Bryan Dorn VA Medical Center in Columbia, South Carolina, dated since November 2008. 2. Make efforts to obtain the Veteran's initial brief to the Court, if one exists, and incorporate it into the claims folder. 3. Obtain a medical opinion from a physician with sufficient expertise to determine the etiology of the Veteran's hypertension. Based on the review of the record, the physician should offer an opinion as to the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension had its onset during active service or is related to any in-service disease, event, or injury? (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension was caused or permanently worsened by his service-connected PTSD? The rationale for all opinions expressed must be provided. If any requested opinion cannot be provided, the physician should explain why. 4. Obtain a medical opinion from a physician with sufficient expertise to determine the etiology of the Veteran's brain tumor/brain cancer. Based on the review of the record, the examiner should offer an opinion as to the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the brain tumor/brain cancer had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to Agent Orange? The rationale for all opinions expressed must be provided. If the requested opinion cannot be provided, the physician should explain why. 5. Undertake any other indicated development. 6. Finally, readjudicate the claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate action, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). (CONTINUED ON NEXT PAGE) As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).