Citation Nr: 1315171 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-03 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a February 2012 decision, the Board denied the Veteran's service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in June 2012, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary "because the Board's reasons or bases for finding that VA was not required to obtain a medical opinion under 38 U.S.C. § 5103(d) [were] insufficient." See The January 2009 Joint Motion at page 1. In a June 2012 order, the Court vacated the Board's February 2012 decision and remanded the matter for readjudication in light of the Joint Motion. 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 on her part. REMAND In the June 2012 Joint Motion, the parties found that the Board failed to provide an adequate statement of reasons or bases for its conclusion that VA was not required to provide the Veteran with a medical examination or obtain a medical opinion. In the now-vacated February 2012 decision, the Board found that a VA examination was not necessary because the Veteran had not been diagnosed with hypertension. Specifically, the Board concluded that "because there is no current disorder to which an event, injury, or disease in service could be related . . . a VA examination is unnecessary." See the February 2012 decision, page 4. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). These regulations also provide that hypertension must be confirmed by readings taken on two or more times on at least three different days. In the February 2012 decision, the Board determined that the Veteran did not have hypertension because she was diagnosed with "borderline hypertension" during a May 2005 general VA examination. It was also observed that the VA Adjudication Procedural Manual states that "service connection for pre-hypertension is not warranted when an examiner diagnoses pre-hypertension based on readings not recognized in Diagnostic Code 7101." See the Board decision, page 5. The Joint Motion observed that the May 2005 VA examiner diagnosed borderline hypertension based on diastolic blood pressure readings that were all above 90mm., but were only taken during the examination and not on three different days as required by Diagnostic Code 7101. In this case, the Veteran's service treatment records document that her blood pressure was in excess of 90mm. on one occasion, and she reported that she had high blood pressure in an undated well-woman medical history form. As noted above, following her separation from service, the Veteran was documented as having diastolic blood pressure in excess of 90mm. during the May 2005 VA examination. Thus, McLendon elements (1) and (2) have been met. With respect to the third McLendon element (association with service), the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits. In this case, the Board finds that the elevated blood pressure reading noted during service, along with the elevated blood pressure reading noted two years after she separated from service, are enough to satisfy the low threshold requirement that a disability "may be associated" with service. McLendon element (3) has therefore been satisfied. With respect to McLendon element (4), this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern whether the Veteran has a hypertension and, if so, whether such a disability is related to her military service or whether it became manifest to a degree of 10 percent or more within 1 year of her separation from service. Accordingly, McLendon element (4), and therefore all elements, have been met. Thus, the Board finds that a VA examination is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to contact the Veteran and request that she provide information referable to all VA and non-VA treatment she has received for her hypertension. After securing any necessary authorization for release of information, the RO/AMC should obtain copies of any outstanding records from any identified health care provider. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder. 2. Then, the Veteran should be afforded a VA examination to determine the existence, nature, and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify whether the Veteran has had hypertension at any point during the pendency of the appeal. If so, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or within one year thereafter or is otherwise related to the Veteran's military service. (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 a certain conclusion as it is to find against it.) If hypertension is diagnosed, the examiner should also comment on whether the disability became manifested to a degree of 10 percent or more within one year of her separation from service. That is, whether the hypertension would have resulted in diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or, whether the Veteran had a history of diastolic pressure predominantly 100 or more and would have required continuous medication for control. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought on appeal is not granted, the Veteran and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).