Citation Nr: 1322240 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-15 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Although the Veteran initially requested a Board hearing, he withdrew that request in March 2012. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). In June 2012, the Board remanded the Veteran's claim for additional development. A supplemental statement of the case was issued in February 2013 by the VA Appeals Management Center (AMC), which continued the denial of the claims. The case is once again before the Board. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's claims were remanded by the Board in June 2012, in order to obtain his private treatment records, schedule him for an additional VA examination, and to obtain additional medical opinions. While the AMC requested the Veteran submit or authorize VA to obtain his private treatment records, the Veteran was not scheduled for an additional VA examination and additional medical opinions were not obtained. For this reason, the claim must be remanded. The record reflects that in a January 11, 2013 conversation with staff at the AMC, the Veteran reported that he wished to withdraw his appeal. In an attempt to verify the Veteran's intensions, the AMC mailed him a letter later that month requesting documentation of his intent to withdraw. No additional response was received. The Board notes that the Veteran's representative subsequently submitted an Informal Hearing Presentation (IHP) which acknowledged that the Veteran had indicated his intent to withdraw his appeal but had not responded to the AMC's letter seeking verification of his statement. The IHP did not withdraw the Veteran's claims on his behalf. Pursuant to VA regulations, "except for appeals withdrawn on the record at a hearing, appeal withdraws must be in writing." As the record does not indicate that the Veteran has withdrawn his appeal in accordance with 38 C.F.R. § 20.204, his claims remain pending. In compliance with the Board's remand instructions, the AMC requested that the Veteran be afforded a new VA examination and that new medical opinions be obtained. A Compensation and Pension Exam Inquiry, however, indicates that these requests were canceled by the RO and "MAS." A handwritten note on the Exam Inquiry explains that the "Veteran wants to withdraw [his] claim[s]." The record does not indicate that any additional attempts were made to obtain the requested VA examination or medical opinion after the Veteran failed to properly withdraw his appeal. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet.App. 268 (1998). Where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. As such, the Board finds that this case is not ready for appellate review and must be remanded for further development. In the remand, the Board observed that the Veteran had been afforded a VA examination for his left knee in May 2011 and that a medical nexus opinion was obtained in August 2011. While the physician who provided the August 2011 medical opinion commented on whether the Veteran's left knee was secondarily related to his service-connected right knee disability; the question of whether the Veteran's left knee disability was incurred in service was not addressed. With respect to the hypertension claim, in a May 2010 medical opinion, a VA examiner indicated that although the Veteran alleged having hypertension that began in service in 1986, the medical evidence failed to support this allegation. The reviewer indicated that the Veteran did not have elevated blood pressure readings, such that the medical evidence did not show the Veteran's current hypertension was associated with high blood pressure during service. The Board observes, however, that this conclusion is based on an inaccurate statement of the Veteran's service treatment records. The Veteran's blood pressure readings were taken not only at routine appointments, but also as part of blood pressure checks in 1988 and 1991. Although the blood pressure readings varied greatly, systolic pressure readings ranged as high as 160, and diastolic pressure readings ranged as high as 98. A February 1988 note indicated that the Veteran was slightly hypertensive. In sum, the May 2010 opinion did not discuss or explain the high blood pressure readings evident in the service treatment records, or the February 1988 medical note that the Veteran was slightly hypertensive. As such, the rationale is incomplete and inadequate, such that remand is required for another VA examination and opinion to address whether the Veteran's hypertension is at least as likely as not caused by or related to his service. VA has a duty to ensure that any examination or VA opinion it provides is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). As the May 2010 and August 2011 VA medical opinions are inadequate, a remand for additional opinions is necessary. As alluded to above, the Board's June 2012 remand also observed that the Veteran had received private treatment from PacMed Clinics since 1998. As the record contains only PacMed treatment records from 2000 to 2002, the missing treatment records should be associated with the claims folder, if available. Finally, the Board observes that the Veteran has not been provided notice of what is required to substantiate a claim for a left knee disability on a secondary service connection theory of entitlement. This must be accomplished. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to contact the Veteran in order to clarify whether he wishes to withdraw any of his claims. A copy of this letter should be mailed to the Veteran's representative. 2. Then, depending on his response, the RO/AMC should ensure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish that the claimed left knee disability was caused or aggravated by his service-connected right knee disability. 3. Then, the RO/AMC should take all indicated action to obtain copies of private treatment records from PacMed Clinics, dated from 1998 to 2000, and any since 2002. These records should be incorporated into the Veteran's claims file. If no records are available, documentation stating such should be incorporated in the claims file. 4. Following receipt of any available outstanding records, schedule the Veteran for a VA examination to obtain an opinion regarding the etiology of his hypertension. The claims file must be made available to the examiner for review in connection with the examination. The examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently shown hypertension is related to the Veteran's service. The examiner must explain all findings and opinions, including the reasons why any opinion would resort to mere speculation, if applicable. The examiner must discuss the high blood pressure readings in service, and the notation that the Veteran was slightly hypertensive. 5. Forward the Veteran's claims file to the examiner who provided the August 2011 opinion for an addendum, if available. If that individual is no longer available, any medical professional can provide the following opinion. The examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently shown left knee disability is related to the Veteran's service. The examiner must explain all findings and opinions, including the reasons why any opinion would resort to mere speculation, if applicable. The examiner should specifically address whether the osteophyte of the left knee is part of the same disease process of the right knee degenerative joint disease (rated under diagnostic code 5003). 6. After conducting any additional development deemed necessary, readjudicate the claim, considering all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The AOJ must address whether the finding in the left knee is part of the service connected degenerative joint disease rated under diagnostic code 5003). See 38 C.F.R. § 3.303. The case should then be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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 or by the United States Court of Appeals for Veterans Claims (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). _________________________________________________ H. N. SCHWARTZ 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).