Citation Nr: 1311124 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-11 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to service connection for hypertension (HTN). 2. Entitlement to service connection for a heart disability, to include congestive heart failure and coronary artery disease, and as secondary to HTN. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. As for the claim of entitlement to service connection for HTN, it is noted that the RO initially denied the claim in April 1982. That decision was not appealed, and in most cases would be considered final and would not be reopened without the submission of new and material evidence. Under the circumstances of this case, however, the Board has recharacterized the claim in consideration of 38 C.F.R. § 3.156(c) (2012). That regulation provides, in the context of previously denied claims where VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider, not reopen, the claim. In this case, the service department records contemplated by the regulation include, in pertinent part, records that are related to a claimed inservice event, injury, or disease. 38 C.F.R. § 3.156(c) (2012). See Vigil v. Peake, 22 Vet. App. 63 (2008). Since the RO denial of the claim of service connection for HTN in April 1982, the Veteran's service treatment records (STRs) have been associated with the claims file. These STRs document that the Veteran was hospitalized for a period of time during service for purposes of evaluating high blood pressure readings. These STRs are qualifying, relevant service department records which require reconsideration of the claim without considering "new and material" requirements. A videoconference hearing was held in December 2012 before the undersigned Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The following remand determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, and for reasons explained below, in order to comply with the legal duty to assist the Veteran, the Board finds that it must once again remand the claims for service connection for additional development action. The Veteran contends that his current HTN began during military service as evidenced by inservice treatment for elevated blood pressure readings. It is also asserted that his heart disability is secondary to HTN. Review of the record reflects that the Veteran was admitted to the hospital during service for hypertensive evaluation. Ultimately, it was determined that no disease was found. Post service records, private and VA, are of record but the earliest record is from 1999, many years after the Veteran's discharge in 1969. It is noted in 1999 that the Veteran had long-standing antihypertensive therapy, but the date that the condition initially was diagnosed was not indicated. He had also had a history of a myocardial infarction about 5 years earlier. Of record is a VA examination report from May 2011 regarding etiology of the Veteran's HTN and heart disease. The report does not support the Veteran's claim. However, it is noted that a December 2012 VA cardiology clinic report was recently added to the claim which includes an opinion by a VA physician's assistant that does support the Veteran's claim. The physician's assistant noted that he reviewed in-service records from December 1968 which showed a number of elevated blood pressure readings. He also noted that the Veteran brought in "other copies of records showing that he [had] been treated for hypertension off and on for at least the last 40 years." The examiner did not describe these records in any detail and why such records are supportive of this conclusion. It is unclear as to whether these records allegedly showing treatment for HTN for the "last 40 years" are different from what is already of record. Indeed, the medical records associated with the claims file contemporaneously with the December 2012 VA cardiology clinic report are not supportive of the conclusion because two records relate to service back in 1968, and then a single private medical record from November 2005. The Board does not follow how these records, separated by more than 35 years, support the December 2012 conclusion. As the December 2012 VA cardiology clinic report references potentially available and relevant treatment records, and it is unclear as to whether such records are in the claims file, an attempt should be made to obtain them and secure a supplemental medical opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issue currently on appeal, to include any and all private treatment records pertaining to HTN and heart disease that are not already of record. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO/AMC must obtain all relevant VA treatment records that are not currently of record, to include any records dated subsequent to December 2012. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO should arrange, if possible, for the Veteran's claims file to be reviewed by the examiner who prepared the December 2012 VA cardiology clinic report , and to obtain a supplemental opinion fully explaining what evidence was relied upon to support the opinion that the Veteran had "been treated for hypertension off and on for at least the last 40 years." The claims file and a copy of this remand should be made available to and reviewed by the examiner prior to the examination and the examiner should acknowledge such a review in the examination report. 3. The RO/AMC should review the examination report, if obtained, to insure that it contains all findings and opinions requested in the remand. The RO should then undertake any additional development deemed necessary, such as another VA examination and opinion. 4. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case (SSOC), before the claims file is returned to the Board, 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).