Citation Nr: 1318520 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-06 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for hypertension. 2. Entitlement to service connection for peripheral neuropathy. 3. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in November 2012, when other issues on appeal were resolved with decisions and the three issues remaining on appeal were remanded for additional development. The Veteran testified at a Board videoconference hearing in June 2012. A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims-file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. 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 is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Board finds that the directives of the Board's November 2012 remand have not been adequately completed, and remand is necessary to complete the necessary actions before appellate review may properly proceed. Entitlement to service connection for peripheral neuropathy The Board's November 2012 remand directed that the Veteran be scheduled for a VA examination to determine the nature and etiology of his claimed peripheral neuropathy, and whether such disability is related to his service-connected hypertension (or any medication taken to treat the hypertension). The Board explained that "the examiner is asked to provide a clear rationale for the opinion presented, and to discuss and address any evidence which might suggest that the Veteran's peripheral neuropathy is related to his hypertension." Importantly, the Board's remand directed that "the examiner is asked to please ensure that the report clearly answers both (1) whether any peripheral neuropathy has been caused by the hypertension, and (2) whether any peripheral neuropathy has been aggravated by the hypertension." The Veteran was accordingly afforded the VA examination in January 2013, and the Disability Benefits Questionnaire (DBQ) form completed by the examiner is of record. Unfortunately, although the examiner completed the section of the DBQ concerning secondary causation, the examiner did not complete the portion of the DBQ concerning secondary aggravation. The Board has carefully reviewed the examiner's comments on the report to see if they otherwise address the aggravation component of the critical inquiry, but the Board finds that the examiner does not address the aggravation element; the examiner addresses the matter only with conclusions that the peripheral neuropathy is unlikely "proximately due to or the result of" the Veteran's hypertension. The Board finds the January 2013 VA medical opinion to be inadequate in that it only addresses the causation aspect of secondary service connection, and does not address the aggravation aspect, with respect to the claim. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). Increased Rating for Hypertension Additionally, the Board's November 2012 remand directed that the Veteran's outstanding VA treatment reports be obtained and made available for review as part of the evidence of record. The Board directed that "the RO/AMC should make arrangements to obtain all outstanding (not already contained in the claims-file) VA medical records of treatment the Veteran has received since the date of the last complete update of the claims-file's set of VA medical records." It appears that the last complete update of the claims-file's set of VA medical records was no later than January 2008, yet the claims-file and Virtual VA clearly reflect that only the reports from February 2012 onward were sought and obtained in the efforts to comply with the remand directive. It appears that VA reports were sought only for the period following the date of the most recent supplemental statement of the case, overlooking the additional outstanding VA reports from January 2008 to February 2012. The Board is unable to find that this constitutes substantial compliance with the remand directive, nor may the Board proceed with appellate review without further completion of the evidentiary record. The Board observes that the November 2010 VA examination report indicates at least a sporadic blood pressure reading that could warrant assignment of a higher disability rating should it be shown to have been the predominant level of blood pressure over a pertinent period. Even following the addition of new VA medical reports from February 2012 onward, there remains a significant gap of four years without the Veteran's VA treatment reports in the claims-file (although VA examination reports for adjudication purposes during that period are contained in the claims file, these are not accompanied by the Veteran's treatment records). As the Board's consideration of this appeal must include determinations regarding the disability ratings warranted during all portions of the period on appeal, including consideration of staged ratings, the Board cannot proceed on such an incomplete record. As VA medical records are constructively of record and must be obtained, the RO should obtain outstanding VA treatment records (from the date of the last complete update of the claims-file's set of VA medical records through the present). See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board has given serious consideration to the question of whether appellate review may effectively proceed on the basis of indirect indications of the pertinent contents of the missing VA treatment records. The Board has considered that the January 2013 VA examination report addressing the Veteran's hypertension summarizes, by reporting the highest and lowest values for diastolic and systolic blood pressure, the Veteran's blood pressure readings from part of the gap period; the January 2013 VA examination report specifies that the summary covers the period from February 2011 onward. The Board has also considered that a VA blood pressure log in the claims-file appears to index a number of blood pressure readings from March 2009 to January 2011. Even should the Board otherwise find that these indirect reflections of the blood pressure data contained in missing VA treatment records adequately substitute for obtaining the underlying VA treatment records themselves, there nevertheless remains a gap of over one year of the appeal period for which the Veteran's blood pressure data appears to be missing (January 2008 through March 2009). The Board is unable to find that the blood pressure log and the VA examiner's summary are adequate substitutes for all of the apparently outstanding pertinent VA treatment records for the period from January 2008 to February 2012, a period of more than four years including one year that appears to not be covered by the indirect documentation currently available. A remand is necessary to obtain the VA treatment records requested by the Board's prior remand. TDIU As the Veteran's appeal for TDIU is inextricably intertwined with the other issues being remanded at this time, adjudication of the TDIU issue must be deferred until completion of the actions directed in this remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should make arrangements to obtain all outstanding (not already contained in the claims-file) VA medical records of treatment the Veteran has received during the period on appeal (including specifically from Audie Murphy VAMC). In completing this action, the RO/AMC must ensure that all of the Veteran's pertinent VA treatment reports from January 2008 through February 2012 are added to the claims-file and made available for review. All pertinent VA treatment reports from after the last update of the claims-file in December 2012 should also be added to the claims-file. 2. The claims-file should be forwarded to the medical professional responsible for the January 2013 VA examination report's medical analysis concerning the etiology of the Veteran's peripheral neuropathy, if available, so that the expert may author an addendum to clarify and amend the information previously presented in the report. If the previous examiner is unavailable, the claims file should be forwarded to a similarly qualified physician for review and comment. If the examiner determines that an additional examination is necessary to address the above questions, such examination should be scheduled. The claims folder must be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should opine as to whether it is at least as likely as not (a 50% or higher degree of probability) that any peripheral neuropathy (with particular attention to the lower extremities), has been permanently aggravated by his service-connected hypertension or any medication used to treat the hypertension. The examiner is asked to provide a clear rationale for the opinion presented, and to discuss and address any evidence which might suggest that the Veteran's peripheral neuropathy is related to his hypertension. The examiner is asked to please ensure that the report clearly answers whether any peripheral neuropathy has been aggravated by the hypertension. The examiner should offer a rationale for any opinion with reference to pertinent evidence. 3. After completion of the above and any additional development which the RO/AMC may deem necessary, the RO/AMC should then review the expanded record and readjudicate the claims on appeal (including the inextricably intertwined issue of entitlement to a TDIU). The RO/AMC should issue an appropriate supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).