Citation Nr: 1315229 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-17 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, including as due to Agent Orange exposure and as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1966 to October 1968, including service in the Republic of Vietnam during the Vietnam War. Subsequently, he had additional service in the United States Army Reserve. He was awarded the Combat Infantryman's Badge (CIB). This appeal to the Board of Veterans' Appeals (Board) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration. The Board's August 2012 decision also denied a separate claim for an increased rating for PTSD beyond 50 percent, but this claim is no longer before the Board. In January 2013, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the hypertension claim and returned the file to the Board for further appellate review. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board primarily remanded this case in August 2012 so the AOJ might provide the Veteran a VA compensation examination and medical nexus opinion, concerning his contentions of a causal relationship to Agent Orange exposure and entitlement to secondary service connection due to service-connected PTSD. Subsequently, in August 2012, a VA examination and opinion was arranged. The examiner provided a negative medical opinion on the possibility that his hypertension was etiologically linked to presumed Agent Orange exposure. The examiner further opined against the possibility that the Veteran's service-connected PTSD either caused or aggravated his diagnosed hypertension. The Board is therefore satisfied there was substantial compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). However, at the time of the last Board remand in August 2012, it appears that not all of the pertinent RO rating decisions were available for review in the physical claims file. The Board's present review of the Veteran's Virtual VA claims file reveals an August 2011 RO rating decision, which granted service connection for prostate cancer, status post total prostatectomy, based on presumptive service-connection for herbicide exposure, and assigned a 100 percent rating. Virtual VA also contains a December 2011 RO rating decision, which granted service connection for ischemic heart disease based on presumptive service-connection for herbicide exposure, and assigned a 30 percent rating. Lastly, the Virtual VA contains a March 2012 RO rating decision, which denied a rating higher than 30 percent for the service-connected ischemic heart disease. Because ischemic heart disease and prostate cancer residuals had been service-connected during the pendency of the Veteran's claim, but without comment by the examiner, the record indicates the need for another remand for further development. Although not specifically raised by the Veteran and his attorney, the Board must consider whether the Veteran's hypertension has a secondary relationship to his service-connected prostate cancer (rated at 100 percent disabling) and/or ischemic heart disease (rated at 30 percent disabling). I. Addendum Opinion from August 2012 VA Compensation Examiner As discussed, the August 2012 VA examiner was not previously asked to consider the impact of the Veteran's service-connected ischemic heart disease and prostate cancer residuals on his hypertension, inasmuch as they might be relevant in this case. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the RO should request an addendum medical opinion from the August 2012 VA examiner on whether his service-connected ischemic heart disease and/or prostate cancer residuals caused and/or chronically aggravated his hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See 38 C.F.R. §§ 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). II. Outstanding VA and Private Medical Records As mentioned, the Virtual VA contains several RO rating decisions, dated in August 2011 (prostate cancer residuals), December 2011 (ischemic heart disease) and March 2012 (ischemic heart disease). The narrative of these decisions and the evidentiary lists refer to private medical records and a VA compensation examination report, which may be relevant, but not made available for review by the Board in this current appeal. The December 2011 decision narrative cites an August 30, 2011 VA compensation examination report for ischemic heart disease. The December 2011 decision also cites private treatment records from the University of Virginia Health Systems, and all of these decisions cite private treatment records from the Lewis Gale Medical Center. Because these records may be relevant to his hypertension claim, the RO should associate a copy of these records with the Virtual VA or his physical claims file. As an ancillary matter, the RO needs to confirm if there are any other outstanding private or VA treatment records. The Board notes that the most recent VA outpatient treatment records that are associated with the physical claims file are from the Salem, Virginia VA Medical Center (VAMC), dated through January 2011. It is unclear whether there are more recent VA treatment records from the Salem VAMC. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should obtain and associate with the claims file all outstanding VA records, particularly from the Salem VAMC, dated since January 2011. Any additional VA or private treatment records that are potentially relevant would need to be obtained before deciding his appeal. See 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(1) and (2) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether there are any additional VA or private treatment records that need to be obtained and considered in his appeal. Then obtain any outstanding and relevant VA treatment records from the Salem, Virginia VAMC, especially dated since January 2011 to the present. See 38 C.F.R. § 3.159(c)(2) (2012). Any unsuccessful development should be properly annotated into the claims file. See 38 C.F.R. § 3.159(e) (2012). Also, ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) for VA to obtain the medical treatment records from any identified, outstanding private treatment records. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2012). 2. The Virtual VA contains several RO rating decisions, dated in August 2011 (prostate cancer residuals), December 2011 (ischemic heart disease) and March 2012 (ischemic heart disease). The December 2011 decision narrative cites an August 30, 2011 VA compensation examination report for the Veteran's ischemic heart disease. The December 2011 decision also cites private treatment records from the University of Virginia Health Systems, and all of these decisions cite private treatment records from the Lewis Gale Medical Center. On remand, the RO should obtain a copy of the August 2011 VA examination report as well as private treatment records from the University of Virginia Health Systems and the Lewis Gale Medical Center. Associate such records with the Virtual VA electronic claims file or with the Veteran's physical claims file for his hypertension claim. 3. After completing the requested development in paragraphs #1 and 2, request an addendum opinion from the nurse practitioner who examined the Veteran in August 2012, in order to clarify the nature and etiology of his hypertension. If this examiner is unavailable, arrange for another VA examination and medical etiological opinion, on the questions below. The claims folder must be provided to the examiner for review of pertinent documents therein in conjunction with the examination and the examiner must note that the claims folder has been reviewed. The examiner is requested to provide an opinion as to the following: a.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension is directly related to service, including to any herbicide exposure? For the purposes of this opinion, the examiner should presume that the Board has had herbicide exposure during service in the Vietnam War, in the Republic of Vietnam. b.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension was caused by the service-connected PTSD, ischemic heart disease or prostate cancer residuals (prostate cancer, status post total prostatectomy)? c.) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension disability was chronically aggravated (worsened) by the service-connected PTSD, ischemic heart disease or prostate cancer residuals? If so, what is the baseline level of disability prior to aggravation and what is the permanent, measurable increase in pathology attributable to the service-connected disability? A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 5. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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 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). _________________________________________________ F. JUDGE FLOWERS 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).