Citation Nr: 1307305 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-27 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD), to include as secondary to an undiagnosed illness. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran had active service from November 1985 to November 1989; from May 1994 to July 1994; from February 2004 to May 2004; from July 2005 to October 2005; and from December 2007 to February 2008. This matter comes before the Board of Veteran's Appeals (Board) on appeal from August 2006, July 2008, and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2006 the RO denied entitlement to service connection for bilateral shoulder disabilities. In July 2008 the RO denied entitlement to service connection for hypertension and in March 2010 the RO determined new and material evidence had not been submitted sufficient to reopen a claim for a respiratory disorder. The Board found that new and material evidence had been received and reopened the claim in a September 2010 decision. In March 2011, the Veteran testified at a Travel Board hearing in Waco, Texas; a transcript of that hearing is of record. In October 2012 the Veteran was notified that the judge who held his hearing was no longer employed by the Board and that he was entitled to an additional hearing. While the Veteran stated that he wanted a hearing before another Board member, he withdrew this request in November 2012. This case was previously brought before the Board in September 2011 and remanded to the RO. The case is once again before the Board. After the claims were last adjudicated by the RO and a supplemental statement of the case was issued in October 2012, the Veteran submitted additional evidence directly to the Board. Under 38 C.F.R. § 20.1304, any pertinent evidence accepted directly at the Board must be referred to the RO for initial review unless this procedural right is waived by the appellant. The Veteran did not waive RO review but the Board has determined the evidence is not pertinent, and is duplicative of other records associated with the claims file. Give the disposition of the hypertension claim and the remand of the other issues, the Veteran is not prejudiced by the current actions. The Veteran filed a claim for entitlement to service connection for psoriatic arthritis, to include as secondary to his service-connected skin disability (eczema), as well as entitlement to service connection for arthritis of the lumbar and thoracic spine. See January 2012 statement. The Board also previously referred the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sinusitis. These claims have not been adjudicated by the RO and are referred for appropriate action. The issues of entitlement to service connection for a respiratory disorder and bilateral shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's hypertension was incurred in or caused by his active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for hypertension, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including hypertension, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The available service treatment records do not diagnose the Veteran with hypertension at any of his medical examinations in service. See e.g., June 1989 separation examination recording blood pressure of 122/78. In an October 2006 private treatment record the Veteran's blood pressure was recorded as 145/125, 140/100, and 144/100. This treatment record does not diagnose the Veteran with hypertension or acknowledge that he was taking medication for his hypertension. In a March 2008 VA examination report the Veteran reported being diagnosed with hypertension in 2004 at a post deployment physical and began taking blood pressure medication following this diagnosis. His blood pressure was recorded at 152/82, 168/94, and 172/107. The examiner noted that the only elevated blood pressure reading from service was an August 2005 treatment record where his blood pressure was 147/92, but no comment was made regarding his blood pressure at that time. The examiner stated there was not enough evidence in the claims file to diagnose the Veteran with hypertension during active service. In a May 2008 VA examination report the Veteran reported he was first diagnosed with hypertension in 2004 and began taking blood pressure medication. He stated that he stopped taking the medication on his own in 2007. The Veteran was then taking blood pressure medication at this examination and his blood pressure was recorded as 160/94, 160/100, and 170/92. The examiner opined the Veteran had hypertension that was not controlled with medication. See also March 2009 VA treatment record diagnosing essential hypertension. The Veteran was afforded a VA examination in November 2011. The examiner noted the Veteran had mildly elevated blood pressure readings in 1993-1994, but no 3 or 5 day recordings and no diagnosis of hypertension in service. The Veteran was currently taking medication to control his hypertension. The Veteran's blood pressure was recorded as 162/100, 159/95, and 155/95. The Veteran reported he was diagnosed and treated in 2004 for hypertension. The examiner opined the Veteran did not have a diagnosis of hypertension in service and the cause of his hypertension was most likely genetics and obesity. The competent evidence of record is not sufficient to grant direct service connection for hypertension. However, the Board has reviewed whether service connection may be presumed to have existed in service. In this regard, the Veteran's hypertension must have manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran had multiple periods of service from 1985 to 2008. The October 2006 private treatment record, which was within one year of separation from service in October 2005, shows readings consistent with diastolic blood pressure over 100. There is no diagnosis of hypertension at this time and no indication the Veteran was taking medication to control his blood pressure. However, again at his March 2008 and May 2008 VA examinations, both within one year of his February 2008 separation from service, the Veteran was diagnosed with hypertension and noted to be taking medication to control his symptoms. Hypertension, for VA purposes, should be confirmed by readings taken on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Veteran had confirmed readings of hypertension at his March and May 2008 VA examinations. Although there is not a third day in this time period confirming hypertension findings, the Veteran was diagnosed with hypertension at both examinations and noted to be taking medication to control his symptoms. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. At all times significant for the purposes of determining whether the Veteran's hypertension was developed during service, the Veteran was either on active duty or on civilian status within a short period of time after service. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). The Board will therefore resolve reasonable doubt in favor of the Veteran, and grant service connection for hypertension based on the presumption that hypertension manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for hypertension is granted. REMAND The RO has not substantially complied with the September 2011 remand instructions. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The Veteran was scheduled for a VA examination for his claimed bilateral shoulder disorder in November 2011. The examiner stated that the Veteran's active duty service ended in 1989 and there were no shoulder complaints noted in his service treatment records during active duty. While the examiner noted that the Veteran's right shoulder surgery was 6 years following his 1989 separation, he did not note the Veteran's periods of service from May 1994 to July 1994; February 2004 to May 2004; July 2005 to October 2005; and December 2007 to February 2008. The examiner also did not offer an adequate opinion to assess whether service connection may be warranted even if there are no findings of the disability in service. The November 2011 VA examiner also found the Veteran had a normal respiratory examination, due in part to poor patient effort. The examiner did not discuss previous findings, during service and the appeal period, of respiratory complaints. See e.g., October 2009 VA examination report diagnosing mild impairment and obstructive pattern. The Court has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The case must be returned to the RO for additional opinions and examination on the Veteran's claims of entitlement to service connection as the November 2011 examinations are inadequate and do not comply with the September 2011 Board remand. Finally, at the Veteran's March 2011 Board hearing he testified that he received monthly treatment from the Dallas VA Medical Center for his shoulders. On remand, the RO must obtain all outstanding treatment records at any VA treatment facility. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all records of VA and non-VA health care providers who have treated him for his respiratory disorder and bilateral shoulder disabilities. a) After obtaining any appropriate authorizations for release of medical information, the RO must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies. b) The RO must associate with the claims file all outstanding medical treatment records from any VA treatment facility. c) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO. 2. After completing the above, schedule the Veteran for a VA examination at an appropriate location to determine the etiology of any respiratory disorder. The following considerations will govern the examination: a) The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Veteran, the examiner must determine if the Veteran currently has a respiratory disorder. If so, the examiner should determine if it is related to service. c) If the Veteran does not have a current respiratory disorder, the examiner should review the Veteran's previous diagnoses and determine if his previous respiratory disorder was related to service. See evidence below. d) If necessary, the examiner should state whether the Veteran has a respiratory disorder that cannot be attributed to a known clinical diagnosis. In this case the examiner should specify whether the Veteran's complaints correspond to objective symptoms, both in the sense of medical signs perceptible to a physician and other non-medical indicators that are capable of independent verification, of a chronic disorder. If a chronic disorder is determined not to be present, the examiner(s) should so state. The examiner's attention is called to the following: i. June 1989 Pulmonary Function Tests performed in service. ii. An October 2009 VA examination report diagnosing the Veteran with mild impairment and obstructive pattern. iii. A 2011 Air Quality Summary on Bagram Air Field issued by the Department of the Army. iv. The Veteran's March 2011 Board hearing testimony that he experienced shortness of breath and upper respiratory infections in service and following separation from service. 3. After completing the first directive, request an appropriate VA physician offer an opinion as to the etiology of the Veteran's bilateral shoulder disabilities. The following directives should be taken into account: a) The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file, the examiner must state whether the Veteran's bilateral shoulder disabilities are related to service. The examiner's attention is called to the following: i. A December 1990 private treatment record noting the Veteran had been experiencing right shoulder pain since February 1989 (in-service). ii. An October 1994 statement from the Veteran's private treatment provider noting right shoulder bony reabsorption at the AC joint. iii. Right shoulder surgery in September 1995. iv. A December 2001 private treatment record diagnosing left shoulder impingement syndrome. v. A December 2001 Magnetic Resonance Image showing type III acromion of the left shoulder. 4. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Stegall, above. 5. After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. 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 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs