Citation Nr: 1318374 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-04 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Andrew O. Bunn, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served for four months and nineteen days, from November 1970 to April 1971, on active duty for training. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran provided testimony at an August 2010 hearing before the undersigned Veterans Law Judge. In January 2013 the Veteran testified before a Decision Review Officer at the RO. Transcripts of the hearings are in the record. The issues of entitlement to service connection for headaches and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT The appellant has withdrawn his appeal seeking service connection for GERD. CONCLUSION OF LAW The criteria for withdrawal of the claim for entitlement to service connection for GERD have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.204(c) (2012). In February 2008 the Veteran submitted VA Forms 9, Appeal to Board of Veterans' Appeals, perfecting his appeal as to the issue of entitlement to service connection for GERD. In March 2013 he submitted correspondence expressing his desire to withdraw from appellate review his claim for service connection for GERD. The Veteran's statement indicating his intention to withdraw the claim of entitlement to service connection for GERD satisfies the requirements for withdrawal of a substantive appeal. As the appellant has withdrawn his appeal as to the issue of entitlement to service connection for GERD, there remains no allegation of errors of fact or law for appellate consideration concerning that issue. The Board, therefore, has no jurisdiction to review the Veteran's claim for entitlement to service connection for GERD and must dismiss the claim. ORDER The appeal concerning the issue of entitlement to service connection for GERD is dismissed. REMAND The Veteran contends that he has headaches and hypertension as a consequence of his service-connected cervical spine, bilateral upper extremity cervical radiculopathy and carpal tunnel syndrome, thoracolumbar spine, bilateral knee, bilateral lower extremity lumbar radiculopathy and psychiatric disabilities. Specifically, the Veteran contends that his headaches are caused by pinched nerves in the service-connected cervical spine. The Veteran has also asserted that his service-connected psychiatric disorder causes sleep deprivation and anxiety, which cause and/or aggravate his headaches. In December 2010, the Board remanded the claims for service connection headaches and hypertension, to obtain a medical examination and opinion as to whether these disabilities were caused or aggravated by a service-connected disability, began during active service, or were related to any incident of service. 38 U.S.C.A. § 5103A(a)-(d); 38 C.F.R. § 3.159(c)(1)-(4). The Veteran underwent a VA neurological examination in June 2011. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed tension headaches and opined that the condition was less likely as not caused by the cervical or lumbar spine condition because the headaches were mostly tension type. The examiner did not provide a rationale explaining the finding that the Veteran's headaches were not caused by the cervical or lumbar spine disability. Moreover, the examiner failed to address whether the Veteran's headaches were aggravated by a service-connected disability, to include the service-connected psychiatric disorder. The February 2012 VA examination report is thus inadequate for rating purposes. Further, pursuant to the Board remand the Veteran underwent a VA hypertension examination in June 2011 that recorded a diagnosis of essential hypertension. The examiner opined that his hypertension was not caused or aggravated by his service-connected disabilities because the service-connected conditions did not cause essential hypertension. The examiner did not address the Veteran's contention that his orthopedic disabilities aggravated his hypertension by precluding exercise. Significantly, in December 2012 the Veteran submitted a statement from his private treating physician, Dr. K.B.H., who opined that his musculoskeletal disabilities aggravated his hypertension by precluding exercise, and as such, his injuries contributed to the Veteran's ongoing problems with hypertension. Thus while the examiner explained that hypertension was not caused by the service-connected disabilities, it remains unclear to the Board whether his hypertension permanently increased in severity beyond the natural progress of the condition due to the service-connected conditions. On remand an addendum opinion addressing the Veteran's contentions and Dr. K.B.H.'s medical opinion report should be obtained. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order; where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. Stegall v. West, 11 Vet. App. 268 (1998). In this case, specific questions posed by the Board were not answered by the examiners, so the examinations do not substantially comply with the terms of the remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case must accordingly be returned to the examiners for addendum opinion reports complying with the terms of the Board's remand in December 2010. Finally, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Also, the Veteran should be requested to provide any outstanding private medical records or authorize VA to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of and in-service and post-service headaches and hypertension symptoms. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Obtain, either electronically or physically, all treatment records for treatment received at the VAMC, not already in the claims file. All attempts to obtain these records must be documented in the claims file. 3. Request the Veteran to identify any sources of private treatment or evaluation relevant to the claims on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records. The RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. All development efforts should be associated with the claims file. 4. After the above development is completed, send the Veteran's claims folder to the examiner who conducted the June 2011 VA neurological examination (or if the examiner is no longer available, a suitable replacement) to request that she prepare an addendum to her report. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The claims files should be made available to and reviewed by the examiner. The examiner must specifically address whether it is at least as likely as not that the Veteran has headaches began during active service or are related to any incident of active service, or are caused or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to include cervical spine, bilateral upper extremity cervical radiculopathy and carpal tunnel syndrome, thoracolumbar spine, bilateral knee, bilateral lower extremity lumbar radiculopathy and psychiatric disabilities. In rendering the opinions, the examiner is requested to consider the effects of any service-connected cervical spine, bilateral upper extremity cervical radiculopathy and carpal tunnel syndrome, and psychiatric disabilities on his headaches. In providing the requested information, the examiner should consider and address the Veteran's competent account of symptomatology. The examiner should provide a complete rationale for any opinion expressed. If it is determined that a medically-sound opinion cannot be rendered without resorting to speculation, an explanation as to why that is so, to include the missing facts necessary to render a non-speculative opinion, should be provided. 5. Send the Veteran's claims folder to the examiner who conducted the June 2011 VA hypertension examination (or if the examiner is no longer available, a suitable replacement) to request that she prepare an addendum to her report. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The claims files should be made available to and reviewed by the examiner. The examiner must specifically address whether it is at least as likely as not that the Veteran has hypertension began during active service or is related to any incident of active service, or are caused or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to include cervical spine, bilateral upper extremity cervical radiculopathy and carpal tunnel syndrome, thoracolumbar spine, bilateral knee, bilateral lower extremity lumbar radiculopathy and psychiatric disabilities. In rendering the opinions, the examiner is requested to consider the effects of any service-connected cervical spine, bilateral upper extremity cervical radiculopathy and carpal tunnel syndrome, and psychiatric disabilities on his hypertension. The examiner is further asked to comment on the clinical significance of Dr. K.B.H.'s December 2012 medical opinion statement. The examiner should opine as to whether the Veteran had hypertension within one year after discharge from active service. The examiner should provide a complete rationale for any opinion expressed. If it is determined that a medically-sound opinion cannot be rendered without resorting to speculation, an explanation as to why that is so, to include the missing facts necessary to render a non-speculative opinion, should be provided. 6. Then, readjudicate the claims. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. Then, return the case to the Board. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs