Citation Nr: 1308445 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 08-31 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of a stroke, to include as secondary to hypertension. 3. Entitlement to a compensable rating for a lumbosacral strain. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from April 1972 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board observes that the Veteran was previously denied service connection for hypertension in an April 2005 rating decision. Within the one year appeal period of that rating decision, new and material evidence was submitted. Consequently, the RO considered the Veteran's current claim on a de novo basis rather than as a petition to reopen. Consistent with the applicable regulation, the Board will also consider the Veteran's claim on a de novo basis. See 38 C.F.R. § 3.156(b) (2012). In September 2012, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Since the statement of the case (SOC), additional evidence has been received, without a waiver, in the form of treatment records and a positive nexus statement regarding the Veteran's hypertension. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the additional treatment records are not pertinent and as the Board is using nexus statement to award service connection for the issue adjudicated herein, the Veteran is not prejudiced by the Board's consideration of this evidence. The issues of service connection for residuals of a stroke, to include as secondary to hypertension and a compensable rating for a lumbosacral strain being remanded 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 has hypertension that is as likely as not related to his active duty. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, he has hypertension that was incurred in his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of service connection for hypertension, no further discussion of these VCAA requirements is required with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. 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 service, 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). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases (e.g., hypertension) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that the onset of his hypertension occurred during service. See, e.g., January 2007 notice of disagreement. A review of the Veteran's service treatment records (STRs) shows no treatment for hypertension. His March 1972 enlistment examination shows that his blood pressure was 118/62. Although the STRs do not reflect treatment for hypertension, they do show elevated blood pressure readings in service. The Board observes that, for rating purposes, VA defines hypertension as diastolic blood pressure is predominantly 90 mm or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). The Veteran was shown to have diastolic blood pressure of at least 90 on several occasions. His blood pressure was 128/90 in March 1989; 140/104 in August 1990; 138/98, 130/90 and 140/90 in August 1991; 150/90 in January 1993; and 163/98 in August 1993. His retirement examination in December 1993 revealed blood pressure of 129/87. In his accompanying report of medical history, the Veteran answered yes to having high blood pressure. Hypertension within normal limits was noted. According to post-service VA treatment records, the Veteran was shown to have blood pressure of 156/102 and 150/90 in May 1994. The earliest post-service evidence confirming a diagnosis of hypertension is in February 1998. At a January 2005 fee-based examination, the Veteran reported having hypertension for 15 years. No opinion regarding the etiology was provided. At his September 2012 hearing, the Veteran testified having elevated blood pressure in service. September 2012 Hearing Transcript (T.) at 3. Following his hearing, the Veteran submitted a statement from J.H., D.O. dated in October 2012. After reviewing the Veteran's service records, it was Dr. J.H.'s opinion that the Veteran had hypertension while on active duty; it was more likely than not that his blood pressure increased while on active duty. This opinion is uncontradicted. Based on a review of the evidence, the Board concludes that service connection for hypertension is warranted. As noted above, the Veteran's STRs clearly show several instances of elevated blood pressure within VA's definition of hypertension. Additionally, his December 1993 retirement examination report of medical history included a notation of hypertension and the Veteran answered yes to having had high blood pressure. The evidence also shows a current diagnosis of hypertension. Furthermore, the evidence supports a finding between the Veteran's currently diagnosed hypertension and his military service. The only medical opinion of record, that of Dr. J.H. in October 2012, indicates that the Veteran had hypertension while on active duty. This opinion is uncontradicted and was premised upon the Veteran's service records. The Board has already noted that the Veteran had elevated blood pressure in service. After reviewing the Veteran's STRs that showed elevated blood pressure, Dr. J.H. opined that the Veteran had hypertension in service. In this case, the Veteran's blood pressure at entrance to service was 118/62; he was not diagnosed with hypertension when he enlisted. As such, the Board finds that the Veteran was in sound condition when he entered service. Since the Veteran was in sound condition when he entered service, his service records clearly show several instances of elevated blood pressure, and as Dr. J.H. opined that the Veteran had hypertension in service, the evidence supports a finding that the onset of the Veteran's hypertension occurred during service. Therefore, in considering the Veteran's multiple in-service elevated blood pressure readings, the post-service diagnosis of hypertension, the Veteran's competent and credible lay statements, as well as the positive nexus opinion from Dr. J.H., and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has hypertension related to his military service. The evidence is in favor of the grant of service connection for hypertension. Service connection for hypertension is, therefore, granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for hypertension is granted. REMAND Regrettably, a remand is necessary for further evidentiary development for the Veteran's remaining claims. As regards the claim of service connection for residuals of a stroke, the Veteran contends that his stroke was secondary to his now service-connected hypertension. See, e.g., January 2007 notice of disagreement. According to post-service medical records, the Veteran had a stroke in December 2004. One of the December 2004 treatment records pertaining to his stroke show that the Veteran had risk factors that included atrial fibrillation and hypertension. Prior to his stroke, the Veteran was advised that noncompliance with medications made him likely to have a cerebrovascular accident. See, e.g., April 2004 treatment record. The April 2004 record shows that the Veteran agreed to take all antihypertensive medications, anticoagulation medication and cholesterol-lowering medication. Based on the evidence of record, it seems that the Veteran's hypertension was but one risk factor of a stroke. The Veteran is not service-connected for any other disability that is a possible risk factor for a stroke. Since it appears that the Veteran's hypertension was a risk factor for his stroke, as service connection has now been granted for hypertension, the Board finds that a medical examination would be beneficial to determine whether the Veteran has residuals of a stroke secondary to his now service-connected hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As regards the Veteran's increased rating claim, he was last afforded a fee-based examination for his lumbosacral strain in August 2006. At his September 2012 hearing, the Veteran testified that his back had worsened. T. at 11. Because the last VA examination for the Veteran's spine occurred over six years ago, the Board finds that the record, as it currently stands, does not adequately reveal the present state of the lumbar spine disability. The Board finds, therefore, that a remand of this increased rating claim is necessary to secure an examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The most recent VA treatment records from the VA Community Based Outpatient Clinic (CBOC) in Columbus, Georgia are dated in December 2006. On remand, records of any VA stroke residuals and lumbar spine treatment that the Veteran received since December 2006 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Also, the Veteran appears to have received private treatment from different providers for his stroke residuals. On remand, any additional private treatment records identified by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service lumbar spine and stroke residuals treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Columbus CBOC as well as from any private physicians. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any December 2004 stroke residuals. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that his stroke was caused or aggravated (permanently worsened beyond normal progression) by the now service-connected hypertension. [If the Veteran's stroke is found to have been aggravated by the now service-connected hypertension, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Also, accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected lumbosacral strain. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent manifestations of the service-connected lumbar spine disability should be annotated in the examination report. The examiner should: A. Provide the range of flexion of the Veteran's thoracolumbar spine and comment on the degree of functional losses such as pain, weakness, excess fatigability, incoordination, and flare-ups. All functional losses should be equated to additional loss of motion (beyond that shown clinically). B. Discuss any associated ankylosis (favorable or unfavorable) of the Veteran's thoracolumbar spine, any unfavorable ankylosis of his entire spine, as well as the frequency (in the past 12 months) of any incapacitating episodes. See 38 C.F.R. § 4.71a, Note 1 following Diagnostic Code 5243 [an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician]. C. Discuss any adverse neurological abnormalities that are the result of the Veteran's service-connected lumbosacral strain. The examiner should identify any nerve(s) affected and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe." 4. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that 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 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs