Citation Nr: 1317819 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 02-12 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disorder, to include a heart murmur. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2000 and August 2002 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was most recently before the Board in July 2012, it was remanded for a Board hearing. It is now before the Board for further appellate action. In January 2013, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge using video-conferencing technology. A transcript of these proceedings has been associated with the Veteran's claims file. The RO notified the Veteran that it had denied service connection for peripheral neuropathy of the lower extremities in November 2012. By way of a December 2012 letter, the RO acknowledged the receipt of a notice of disagreement from the Veteran with respect to that issue. As this is not a situation where VA has failed to acknowledge receipt of a notice of disagreement, see Manlincon v. West, 12 Vet. App. 238 (1999), and as the RO is taking action on the matter while other claims were transferred to the Board, the Board will not take jurisdiction over the issue at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board sincerely regrets having to remand the Veteran's claim for another time; however, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The induction examination report notes that the Veteran had borderline hypertension. Blood pressure readings taken on February 13, 1967 were 182/88, 148/80, and 132/60. Blood pressure readings taken on February 14, 1967 were 142/70, 140/90, 148/80, 118/84 and 130/86. Blood pressure readings taken on February 15, 1967 were 132/78, 130/74, 130/74, and 130/82. He was deemed fit for military service and was allowed entry into service with a P2 physical profile. The Veteran testified during the January 2013 Board hearing that he was under stress at the time of his induction. He had been drafted when his wife was pregnant and he was worried he would be sent to Vietnam. The Veteran appeared to be attempting to show that he did not have hypertension prior to service, that it began in service and that his current hypertension was related to his hypertension in service. The February 1969 separation examination report shows the Veteran's blood pressure reading to be 120/70. During the separation examination, a Grade I-II systolic apical heart murmur was noted. In July 1969, the Veteran was provided an examination. Hypertension was not found on this examination. Blood pressure readings were 136/50, 138/50 and 132/70. The examination reported noted the presence of functional heart murmur but chest x-ray films and electrocardiogram were normal. A January 1975 occupational health service treatment record from Fort Campbell, Kentucky, included a chest x-ray, an echocardiogram and an electrocardiogram which were normal. The examiner noted the presence of an "innocent murmur." Additional medical records dated in 1982 do not reflect diagnoses of hypertension or heart disease. In December 2003, the Veteran was admitted to Baptist Hospital in Nashville for small seizures. Hospital records noted a history of hypertension. One physician assessed small vessel ischemic disease. The Veteran has received several VA examinations during the course of this appeal. Some physicians have found that they would be resorting to mere speculation to provide an opinion as to whether the Veteran's hypertension and heart disorder began prior to service. See September 2004, February 2009, and June 2009 VA opinions. Other examiners determined that his heart disorders were less likely related to service. See March 2010, May 2010 and December 2010 VA opinions. In a December 2010 statement, a physician opined that the Veteran's hypertension existed prior to service and that neither the Veteran's hypertension or heart disorder were caused or aggravated by the Veteran's service. Two physicians provided positive opinions linking the Veteran's hypertension to his military service. See February 2009 VA opinion and November 2010 private opinion. One physician provided a positive opinion linking the Veteran's heart murmur to his heart murmur during service, but the examiner said "I think that his current hypertension and murmur are caused by his hypertension and murmur in the military, but I have no way to know whether it was present beforehand." See February 2009 VA opinion. This opinion is speculative in nature and therefore another medical opinion is necessary. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). In addition, a current diagnosis of the Veteran's heart is unclear. Some evidence shows that the Veteran has a heart murmur. An examination is needed to provide a clear diagnosis of the Veteran's heart disorder. In addition, the Veteran reports that he was hospitalized on several occasions during service relative to his heart disorder. The service treatment records show that he was hospitalized at the 36th Evac. Hospital in Vietnam in December 1968 and at Letterman General Hospital in San Francisco, California, in February/March 1969. The RO should attempt to obtain these records on remand. The Veteran should also be asked to identify any additional medical records that may be relevant to his claim that are not already of record, including those pertaining to the treatment of histoplasmosis prior to service. In addition, a DD Form 215 reflects that the Veteran was awarded the Vietnam Gallantry Cross with Palm. On remand, the Veteran's complete service personnel records should be obtained as the circumstances for the award are not explained in the DD Form 215. Finally, the Veteran asserted during the hearing that his heart disease is secondary to hypertension. In addition, the Appeals Management Center considered in the April 2012 supplemental statement of the case whether the claimed disorders are secondary to service-connected disabilities. Accordingly, notice should be provided to the Veteran concerning how to substantiate his claims on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Veteran as to how to substantiate his claim for service connection for heart disease and hypertension as secondary to service-connected disabilities pursuant to 38 C.F.R. § 3.159 (2012). 2. Obtain relevant VA treatment records pertaining to the Veteran that date from April 2012. 3. Request clinical records pertaining to inpatient treatment of the Veteran during service at the following facilities: (a) Letterman General Hospital in San Francisco, California, in February/March1969; and (b) the 36th Evac Hosp, Vung Tau, Republic of Vietnam in December 1968. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. The Veteran should also be informed that he can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 4. The Veteran should also be asked to provide or identify any additional medical records that are pertinent to his claims that are not already of record, including those pertaining to the treatment of histoplasmosis prior to service. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Obtain the Veteran's complete service personnel file. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 6. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to address the etiology of his hypertension and heart disorder. The examiner should diagnose all heart disorders found on examination. The claims folder and a copy of this entire remand should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. (a) The examiner should first address whether the borderline hypertension noted on the service entrance examination is hypertension. A complete rationale for the opinion must be provided. (b) If so, was the pre-existing hypertension at least as likely as not aggravated (i.e., permanently increased in severity) during active service? A complete rationale for the opinion must be provided. (c) If so, was any increase during active service clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete rationale for the opinion must be provided. (d) If the examiner determines that the borderline hypertension shown on the entrance examination was not hypertension, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that hypertension pre-existed active service. A complete rationale for the opinion must be provided. (e) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing hypertension WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. A complete rationale for the opinion must be provided. (f) If a response above is negative, is it at least as likely as not (50 percent or greater likelihood) that the Veteran's hypertension began in or is related to his military service, to include as a result of presumed herbicide exposure therein. A complete rationale for the opinion must be provided. (g) The examiner should express an opinion as to whether the Veteran has ischemic heart disease. (h) If not, or if he also has a non-ischemic heart disorder, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that any such diagnosed heart disorder pre-existed active service. A complete rationale for the opinion must be provided. (i) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that any such pre-existing heart disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. A complete rationale for the opinion must be provided. (j) If a response to (h) or (i) is negative, is it at least as likely as not (50 percent or greater likelihood) that the Veteran's non-ischemic heart disorder began in or is related to his military service, to include as a result of presumed herbicide exposure therein. A complete rationale for the opinion must be provided. (k) Is it at least as likely as not (50 percent or greater likelihood) that a current heart disorder is due to or the result of hypertension, a closed fracture mid shaft of the right middle metacarpal, bilateral hearing loss or a laceration of the right hand. A complete rationale for the opinion must be provided. (l) Is it at least as likely as not (50 percent or greater likelihood) that a current heart disorder is aggravated (i.e., worsened) beyond the natural progress due to hypertension, a closed fracture mid shaft of the right middle metacarpal, bilateral hearing loss or a laceration of the right hand. A complete rationale for the opinion must be provided. (m) Is it at least as likely as not (50 percent or greater likelihood) that hypertension is due to or the result of the service-connected closed fracture mid shaft of the right middle metacarpal, bilateral hearing loss or a laceration of the right hand. A complete rationale for the opinion must be provided. (n) Is it at least as likely as not (50 percent or greater likelihood) that hypertension is aggravated (i.e., worsened) beyond the natural progress due to the service-connected closed fracture mid shaft of the right middle metacarpal, bilateral hearing loss or a laceration of the right hand. A complete rationale for the opinion must be provided. 7. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing any additional development deemed necessary, the AMCRO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC and provides an opportunity to respond. The appellant 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). 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). _________________________________________________ S. S. TOTH 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).