Citation Nr: 1316966 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-28 038 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for PTSD, currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active military service from March 1966 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the VA RO in Waco, Texas. In March 2010, the Veteran testified at a Travel Board hearing before the undersigned acting Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). These matters were previously before the Board in July 2010 and were remanded for further development. In September 2011, the Board issued a decision which denied these claims. The Veteran appealed the Board's denial to the Court. In a November 2012 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board. These issues are now back before the Board for adjudication. The Board notes that additional medical evidence was associated with the Virtual VA paperless claims file after the most recent supplemental statement of the case (SSOC) was issued with respect to these claims. However, as these issues are being remanded for further development, the Board finds no prejudice to the Veteran in proceeding to adjudicate these claims as done below. 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 After a thorough review of the claims file, the Board finds that additional development is needed prior to adjudication of these claims. With regard to the Veteran's claim of entitlement to service connection for hypertension, the Veteran avers that his hypertension is aggravated by his PTSD, and began after he had PTSD. (See Board hearing transcript, page 14, and October 2010 VA examination report.) The Veteran is service connected for PTSD, effective from July 2002. The Veteran's January 1966 report of medical history for pre-induction purposes reflects that the Veteran reported that he had "high or low blood pressure." The physician's summary and elaboration reflects that the Veteran had high blood pressure and the date "1962". The report of medical examination for induction purposes reflects a blood pressure reading of 138/76. No clinical assessment of hypertension was made. The Veteran's remaining service treatment records are negative for any in-service complaints of, or treatment for, hypertension. A June 1966 service treatment record reflects a blood pressure reading of 110/70. A July 1966 service treatment record reflects that the Veteran had been admitted to a medical facility due to pneumonia. His blood pressure was 122/78. A November 1966 report of medical history for purposes of replacing medical health records reflects that the Veteran reported that he had had high or low blood pressure. The November 1966 report of medical examination reflects a blood pressure reading of 118/78. A June 1967 service treatment record reflects a blood pressure of 128/82. The Veteran's report of medical examination for separation purposes, dated in February 1968, reflects a blood pressure reading of 120/70. Hypertension was not listed in the summary of defects and diagnoses, and the Veteran was deemed qualified for separation. The first evidence showing an assessment of hypertension dates to a June 2002 VA treatment record. At that time, the Veteran reported a 30-year history of hypertension. The record does contain a notation from a candidate for a doctorate of pharmacy noting that the Veteran's blood pressure was slightly elevated on a date in November 2006. He stated that the Veteran's blood pressure may be increased due to stress, caffeine, or nicotine. In October 2010, the Veteran underwent a VA examination. With regard to the question of whether hypertension is causally related to military service, the examiner concluded that he could not resolve this issue without resorting to mere speculation. As a rationale for this statement, he noted that there is no objective evidence that hypertension is etiologically related to PTSD or military service. The examiner indicated that he came to this conclusion based on the medical records and his clinical experience. The examiner further noted that the Veteran's baseline disabling manifestations of the hypertension are fatigue and lightheadedness. He further noted that there were no increased disabling manifestations which are proximately due to the service-connected PTSD. However, the examiner went on to note that he could not resolve this issue without resorting to mere speculation. In the November 2012 Memorandum Decision, the Court noted that the Board erred in relying on an inadequate medical examination with regard to the Veteran's claim for benefits for hypertension. The Court further noted that the examiner concluded that he could not resolve the issue of whether the Veteran's hypertension is causally related to military service without resorting to mere speculation, but the examiner did not explain why an opinion on this issue by him would be speculative. Moreover, the Court noted that the rating code for hypertension is based on objective evaluations of blood pressure readings, and the examiner did not address whether the Veteran's blood pressure is affected by his PTSD. In light of the findings in the November 2012 Memorandum Decision, the Board finds that this issue should be remanded in order to afford the Veteran a new VA examination for the proper assessment of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002). The Court has held that, when VA undertakes to provide a VA examination or obtain a VA opinion, VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, this issue must be remanded in order to schedule the Veteran for a new VA examination to determine whether the Veteran currently has hypertension and, if so, whether this hypertension was caused or aggravated by his active duty service or his service-connected PTSD. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). With regard to the Veteran's claim for an increased rating for PTSD, the Board notes that the records reflect that the Veteran reported that he had been attending PTSD group meetings at a Veteran Center. Records from a Veteran Center from July 2007 to the present are not associated with the claims file. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2012). As such, this issue should be remanded in order to obtain any available Veteran Center treatment records that could potentially be pertinent to the Veteran's claim. Further, upon remand, any other VA treatment records pertinent to the claims on appeal that have not yet been associated with the claims file should be obtained as well. Additionally, the Board notes that the Court has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As this claim is already being remanded for further development, and the Veteran indicated in a June 2012 statement that his PTSD has worsened, the Veteran should be afforded a new VA examination to determine the current severity of his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's available Veteran Center treatment records that have not yet been associated with the claims file. 2. Obtain any and all VA treatment records that have not yet been associated with the claim file. 3. Schedule the Veteran for a VA examination for his hypertension. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should also elicit from the Veteran a history of his symptoms relating to his hypertension. After reviewing the file, examining the Veteran, and noting the Veteran's reported history and assertions, the examiner should render an opinion as to whether it is at least as likely as not that that the Veteran has hypertension that had its onset during active duty service, or is otherwise caused or aggravated by his active duty service. An opinion should also be provided as to whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected PTSD. The examiner should specifically address the effect, if any, of the Veteran's PTSD on his blood pressure readings. If any opinions cannot be provided with regard to these questions without resorting to mere speculation, the examiner should specifically state why an opinion on this issue would be speculative. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 4. Provide the Veteran with a VA psychiatric examination in order to determine the current severity of his PTSD. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should provide an opinion concerning the current degree of social and industrial impairment resulting from the Veteran's service-connected PTSD. In addressing this matter, the examiner should also provide a Global Assessment of Functioning (GAF) score, along with an explanation of that score. Complete rationale for all opinions expressed should be provided. 5. Then, the RO/AMC should readjudicate the claims. In particular, the RO should review all the evidence that was submitted since the SSOC was issued. If the benefits sought remain denied, the Veteran and his representative should be provided a SSOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims 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). _________________________________________________ J. K. BARONE Acting 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).