Citation Nr: 1321009 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 05-33 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left leg disability, claimed as a sciatic disorder, to include as secondary to service-connected right thigh shrapnel wound residuals. 3. Entitlement to an initial rating in excess of 50 percent for PTSD. 4. Entitlement to an initial rating in excess of 10 percent for residuals of right thigh shrapnel wound. 5. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This appeal initially came before the Department of Veteran Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office in Los Angeles, California. The Veteran was afforded a Travel Board hearing in September 2012 before the undersigned Veterans Law Judge sitting at Los Angeles, California. The transcript is of record. By decision dated in January 2012, the Board granted service connection for bilateral hearing loss and tinnitus. Service connection for type II diabetes mellitus, penile infection, and high cholesterol was denied. These matters denied on appeal are no longer for appellate consideration. The issues of higher ratings for PTSD, right thigh shrapnel wound residuals affecting Muscle Group XV, and a total rating based on unemployability due to service-connected disability were remanded for further development. As noted in the prior Board decision, the Veteran has raised the issue of entitlement to service connection for bilateral knee disability as secondary to service-connected disability. This matter is referred to the RO for appropriate consideration. Following review of the record, 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 Veteran asserts that he has hypertension that is secondary to or is aggravated by service-connected PTSD for which service connection is warranted. The Board observes that in the Board's January 2013, it was requested that an opinion be rendered as to whether hypertension was aggravated by service-connected PTSD. The Board observes, however, that on the May 2013 Disability Benefits Questionnaire (DBQ) report of examination, the VA examiner did not present a sufficient response to this question. The examiner related that "While the stresses associated with service [emphasis added] can raise the blood pressure, this is temporary and transient. The evidence in the literature is inconclusive as to whether or not that in turn results in a permanent elevation of blood pressure." The Board observes that these statements do not specifically denote whether PTSD is an aggravating factor in the development of hypertension, and only appear to refer to stressful inservice events generally. Moreover, in an ensuing section of the DBQ pertaining to aggravation, the examiner did not provide any opinion as to whether hypertension is as likely as not aggravated beyond it natural progression by PTSD. As such, the Board finds that the examination report in this regard is inadequate for adjudication purpose. It must therefore be returned for additional development. During personal hearing in September 2012, the representative indicated that the Veteran claimed service connection for a left leg sciatic disorder. The Veteran testified that when his right leg "started going bad, my left leg had to do all the work." "Now the left leg is going out because it's supporting the right leg." The evidence reflects that in the subsequent remand instructions, it was requested that the VA examiner indicate whether the appellant had a diagnosis relating to the left leg, and whether it was at least as likely as not caused by or made worse by service-connected right thigh injury. The Board notes, however, that although the left leg was examined in May 2013, the examiner focused on the right thigh and the left knee in his opinion to the exclusion of the left leg. The examiner did not indicate whether there was any disability affecting the left leg other than the left knee, and only provided an opinion as to a relationship between the right thigh and the left knee. The left knee is an issue that is separate from any condition or symptoms affecting the left leg. In view of such, the Board finds that the examination with respect to the left leg is also inadequate for adjudication and must be remanded for further development. Additionally, the record reflects that when the Veteran was afforded a personal hearing in September 2012, he testified that he saw a VA therapist once a week and a VA psychiatrist four times a year for PTSD. He related that he had been going to Kaiser Permanente since the early 1970s for treatment of hypertension and other disorders, including his legs in the 1980s. The Board notes that the most recent VA records date through June 2011. As well, review of the claims folder reflects that that are no Kaiser Permanente records prior to 2001. As VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Accordingly, VA outpatient records dating from July 2011 through the present should be requested and associated with the claims folder. Additionally, the Veteran should be requested to provide authorization to retrieve Kaiser Permanente clinical records dating from 1967 through 2001. In view of the above, the Board does not have the requisite information to grant or deny service connection for the claimed disorders at this time. The Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The appellant should therefore be scheduled for a VA examination by a medical doctor for review of the record and a medical opinion that takes into account the records of prior medical treatment so that the evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). It is unfortunate that this case has to be remanded yet again. However, the Board would be remiss in its duty to assist the claimant by not obtaining an adequate examination. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has stated that if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with the Board errs in failing to ensure compliance. Id. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran in writing and request that he provide authorization to retrieve clinical records from Kaiser Permanente for treatment of any disability sought on appeal from 1967 through 2001. After securing the necessary release, the RO should request this information. The claims folder should contain documentation of all attempts to obtain the records. 2. Retrieve VA outpatient records dating from July 2011 through the present and associate with the claims folder. 3. Obtain responses to the questions below. Either contact the prior examiner(s) for an expanded response or schedule the Veteran for an examination by an appropriate VA examiner(s). The claims folder and access to Virtual VA, as appropriate must be made available to the examiner(s). The examiner(s) must indicate whether the claims folder and Virtual VA were reviewed. All indicated tests and studies should be performed and clinical findings must be reported in detail, if exams are conducted. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. Based on a thorough review of the evidence of record and the physical examination findings (if conducted), the examiner(s) must opine with detailed and complete rationale as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) a) hypertension is caused by or is aggravated (permanently made worse) by service-connected PTSD. b) The VA examiner should indicate whether the Veteran has any disability of the left leg other than a left knee disorder. If so, please provide the diagnosis and an opinion as to c) whether it is at least as likely as not any left leg disability, other than the left knee, is caused by or is aggravated (permanently made worse) by service-connected right thigh shrapnel wound residuals. The examination report(s) must include well-reasoned rationale for all opinions and conclusions reached. 4. The RO must ensure that the medical report(s) requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. See Stegall. 5. After taking any further development deemed appropriate, re-adjudicate the issues on appeal, to include a total rating based on unemployability, as indicated. If a benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned 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). ______________________________________________ MICHAEL D. LYON 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).