Citation Nr: 1314304 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-46 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides, or in the alternative, as secondary to a service-connected disability. 2. Entitlement to service connection for a ruptured aortic aneurysm, to include as secondary to a service-connected disability. 3. Entitlement to service connection for residuals of a cerebrovascular accident (CVA), to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969, to include service in the Republic of Vietnam. He is in receipt of a Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from July 2008 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A hearing was held in March 2013 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. Since the RO's last adjudication of the Veteran's claims in an October 2012 supplemental statement of the case, additional evidence has been associated with the Veteran's claims file which was accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Characterization of the issues on appeal During the pendency of the Veteran's appeal, the Veteran has asserted his claims under multiple theories of entitlement, to include direct, secondary and presumptive service connection. In accordance with Schroeder, the Veteran's claims have been expanded and recharacterized as stated on the title page to include these various theories of entitlement. Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to investigate all theories of entitlement). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In light of the recharacterization and expansion of the Veteran's claims, as described in the Introduction, the Board concludes that additional procedural and evidentiary development must be completed, and thus, a remand is necessary. Initially, to the extent that the Veteran has asserted that his claims on appeal are interrelated (i.e., that his ruptured aortic aneurysm and/or residuals of a CVA are secondary to his hypertension), the claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Although the Veteran has asserted all of his claims under the theory of secondary service connection, he has not been provided notice of all of the laws and regulations pertinent to claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the RO/AMC must provide the Veteran with adequate notice because he has not received such, and the Board is without authority to do so. Further, although the RO provided the Veteran a QTC examination and obtained an additional medical opinion concerning his claim to establish service connection for residuals of a CVA, further development is necessary. Specifically, in light of the Board's expansion and recharacterization of the Veteran's claims, the August 2008 QTC examination report and September 2008 QTC opinion do not adequately address all theories of entitlement asserted by the Veteran. In particular, neither the August 2008 QTC examination report nor the September 2008 QTC opinion speak to whether the Veteran's residuals of a CVA are (1) the result of his service, (2) caused by his service-connected disabilities, or (3) aggravated by his service connected disabilities. Accordingly, the August 2008 QTC examination report and September 2008 QTC opinion are inadequate, and VA must provide the Veteran with another VA examination in order to fulfill its duty to assist the Veteran. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Moreover, the Veteran has not been afforded an examination in connection with his claims to establish service connection for hypertension and a ruptured aortic aneurysm. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Under McLendon, VA is obliged to provide a medical examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. Id; see also 38 U.S.C.A. § 5103A (d) (West 2002). The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006). The evidence reflects that the Veteran has been diagnosed with hypertension and a ruptured aortic aneurism. Although the Veteran's service treatment records do not reflect diagnoses of or treatment for hypertension or symptomatology associated with a ruptured aortic aneurysm, as noted above, the Veteran served in the Republic of Vietnam, and thus, in-service exposure to herbicides is presumed. Further, service connection has been established for several disabilities, to include posttraumatic stress disorder (PTSD) and squamous cell carcinoma of the left true vocal cord, and thus, element (2) of secondary service connection has been demonstrated. Most importantly, the Veteran has submitted medical treatise articles which tend to suggest, but not outright relate, a relationship between psychiatric disabilities (such as PTSD) and cardiovascular disabilities (such as hypertension and aortic rupture). However, while treatise evidence may used to meet the requirement for a medical nexus, Wallin v. West, 11 Vet. App. 509 (1998), and can provide important support when combined with an opinion of a medical professional, Mattern v. West, 12 Vet. App. 222, 228 (1999); the Court has held that an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). In light of above, the Board concludes that the Veteran must be provided additional examinations in order for VA to fulfill its duty to assist the Veteran. 38 C.F.R. § 3.159(c) (4). Since this case must be remanded for other matters, the Board finds that the AMC should request that the Veteran identify any and all treatment records (VA and private) which may be pertinent to his claims and are not already associated with the record. The Board observes that the claims file is devoid of VA treatment records, and the Veteran's wife has asserted that the Veteran has not received VA treatment. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a notice letter which provides an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. Request that the Veteran identify any and all private treatment records which may be pertinent to his claims. After obtaining authorization(s) from the Veteran, obtain copies of all identified treatment records and associate them with the claims file. The RO/AMC must make two attempts to obtain the relevant private treatment records or make a formal finding that a second request for such records would be futile. 38 U.S.C.A. § 5103A(2)(B) (2012); Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All attempts to obtain records must be documented in the claims file. If the RO/AMC is unable to secure same, notify the Veteran and (a) identify the specific records that are unobtainable; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed hypertension, residuals of a CVA, and ruptured aortic aneurysm. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner is asked to provide an opinion for each of the claimed disabilities (hypertension, residuals of a CVA, and an aortic rupture) as to whether it is at least as likely as not (50 percent probability or more) that it is related to active service, including the Veteran's exposure to herbicides. If any of the disabilities are found not to be related to active service, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the claimed disabilities were caused or aggravated by a service-connected disability, to include PTSD, radiation treatment for carcinoma of the left vocal cord, hypertension (if service-connected), or any other service-connected disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. Any stated opinion should be supported by a complete rationale. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the Court 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 C. SCHARNBERGER 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).