Citation Nr: 1316757 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-24 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1989 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. By decision of May 2011, the Board denied the appeal for a disability rating in excess of 10 percent for service-connected hypertension. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2012, the Court issued an order granting a Joint Motion for Partial Remand (Joint Motion), vacating that portion of the Board's May 2011 decision which denied an increased rating for hypertension, and remanded that issue to the Board for further consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Increased rating for Hypertension The Veteran seeks a disability rating in excess of 10 percent for service-connected hypertension. The service-connected hypertension has been rated 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). According to the February 2012 Joint Motion that was filed with the Clerk of the Court, thus becoming the Order of the Court, the parties agreed that the most recent VA medical examination of record, dated in December 2009, was inadequate for rating purposes because the VA examiner noted that the Veteran's heart size was abnormal, but did not conduct additional diagnostic testing. The Joint Motion did not note the same VA examiner's assessment in December 2009 that there was no evidence of hypertensive heart disease or that there were no arteriosclerotic complications of hypertension present, or that the actual diagnosis entered was hypertension, rather than hypertensive heart disease. Nevertheless, the finding of abnormal heart size, even by palpation by the VA examiner, is an indication that further more specific clinical testing may be needed to determine whether the Veteran in fact has an enlarged heart, even though no further testing was actually indicated by medical professionals to be needed in this case. See Green v. Derwinski, 1 Vet. App. 121, 123-24 (1991) (holding that the duty to assist includes providing additional testing or examinations recommended by a VA examiner). The finding of abnormal heart size by palpation by the VA examiner also raises the questions of whether the Veteran's service-connected hypertension a) is the cause of any finding of enlarged heart, or b) has caused or contributed to another cardiovascular disorder, such as hypertensive heart disease. In the present case, further medical evaluation and opinion is required in order to determine if the service-connected hypertension has resulted in an enlarged heart or other related findings, and whether any such symptomatology is part of the Veteran's hypertension or a separate disability. The Joint Motion noted findings of record involving the Veteran's heart size, and suspected abnormal enlargement, but did not state any basis for its implicit finding that Diagnostic Code 7007, which rates hypertensive heart disease, was an appropriate Diagnostic Code to rate the Veteran's service-connected hypertension. See 38 C.F.R. § 4.104 (2012). The Joint Motion agreed that the record was inadequate in that the VA examination and other evidence failed to address all potentially applicable findings that include enlarged heart, noting that cardiac hypertrophy or dilatation, which are criterion under Diagnostic Code 7007 (rating hypertensive heart disease), were shown by some evidence of record. Additionally, the Joint Motion indicates that the Board failed in its adjudication to consider potentially applicable rating criteria at Diagnostic Code 7007 (hypertensive heart disease) to rate the Veteran's service-connected hypertension. The criteria for rating hypertensive heart disease, Diagnostic Code 7007, and hypertensive vascular disease, Diagnostic Code 7101, are distinct and separate criteria. Diagnostic Code 7007 measures disability based on impairment of cardiac workload (measured in METs) and related symptomatology of the heart, whereas Diagnostic Code 7101 rates based on blood pressure readings alone, without regard for any cardiac symptomatology. 38 C.F.R. § 4.104. When assessing the degree of impairment resulting from a service-connected disability, the "use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation . . . [is] to be avoided." 38 C.F.R. § 4.14 (2012). Nevertheless, "when it is not possible to separate the effects of the [service connected disability and the non- service connected disability], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition." 61 Fed. Reg. 52698 (Oct. 8, 1996); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that, when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability); see also Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that a veteran is entitled to separate ratings for each residual arising from a single disability only if none of the symptomatology for one condition is duplicative). For these reasons, remand is required to afford the Veteran a medical examination that makes all findings necessary to rate the service-connected hypertension, including to try to resolve any questions of relationship between, or differentiation from, the service-connected hypertension and finding of enlarged heart (or other disorder such as hypertensive heart disease, if found). Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d) (West 2002); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Next, the Board observes that the Veteran is in receipt of ongoing medical care from VA providers. The VA medical records were last requested in approximately 2009. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Request any pertinent medical records not already received from the Leavenworth, Kansas, VA Medical Center and any other VA facilities at which the Veteran has received treatment for the service-connected hypertension. If no such records are available, that fact should be noted for the record. 2. Contact the Veteran and request that she identify specific names, addresses, and approximate dates of treatment for all health care providers who provided treatment for her service-connected hypertension. For any private health care providers identified, ask the Veteran to provide a release for these records. The RO should attempt to obtain any properly identified records. Any negative reply should be documented for the record. In the alternative, the Veteran may obtain such records and submit them. 3. The RO/AMC should afford the Veteran an appropriate VA hypertension (cardiovascular) examination to assist in determining the current manifestations and severity of the service-connected hypertension and, if found, enlarged heart or other disorder such as hypertensive heart disease. The examiner should review relevant documents in the claims folder, interview the Veteran, and conduct any necessary physical examination and tests and studies, including to determine whether the Veteran has an enlarged heart. The examiner should note specific findings or diagnoses regarding the Veteran's hypertension, as well as any related hypertensive heart disease and/or enlarged heart. The examiner should specifically note whether the Veteran exhibits any cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The examiner should indicate the Veteran's workload in METs, and indicate whether such a workload results in such symptoms as dyspnea, fatigue, angina, dizziness, or syncope. The examiner should offer opinions on the following questions: a. Based on the electrocardiogram, echocardiogram, X-rays, or other clinical studies performed, does the Veteran have cardiac hypertrophy or dilation? Please also note and comment on past findings of enlarged heart in the record, including a July 2005 chest X-ray and the December 2009 VA examination report. b. If cardiac hypertrophy or dilation are found, is the cardiac hypertrophy or dilation as likely as not a manifestation of the service-connected hypertension? c. If cardiac hypertrophy or dilation are found, is the cardiac hypertrophy or dilation part of a different disease process than hypertension? If so, state what disease process causes such findings, including whether the Veteran has diagnosed hypertensive heart disease. d. If the examiner determines that any cardiac hypertrophy or dilation is the result of a separate disease process, such as hypertensive heart disease, the examiner should offer the following opinions: i) Is it as likely as not that this disease process is caused by the Veteran's service-connected hypertension? ii) Is it as likely as not that this disease process is aggravated by the Veteran's service-connected hypertension? (For VA purposes, " aggravation" is defined as a permanent increase in the severity of the underlying disability beyond its natural progression) The reasons should be given for any opinion provided. If an opinion cannot be provided without resort to pure speculation, the VA examiner should explain why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc). The VA examiner should identify the relevant testing or other information needed to provide the requested opinion. If development is required, the development should be conducted and the claims file returned to the VA examiner. 4. After undertaking any additional development deemed appropriate, adjudicate the claim for an increased rating for service-connected hypertension in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case, and should be afforded the applicable 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 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). _________________________________________________ J. Parker 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).