Citation Nr: 1323579 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-20 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected asthma. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from September 2004 to November 2004. This appeal comes to the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2005, the RO granted service connection for asthma, evaluated as 30 percent disabling, and denied claims for service connection for right wrist strain, cervical spondylosis, lumbosacral strain, and hypertension. In December 2007, the RO severed service connection for asthma, effective January 1, 2008. In June 2010, the Board granted the Veteran's appeal for restoration of service connection for asthma and remanded the Veteran's claim for additional development, including scheduling VA examinations to determine the current severity of the Veteran's asthma and the etiology of his hypertension. The Board also remanded for additional development the Veteran's claims of entitlement to service connection for cervical spondylosis and lumbosacral strain. In May 2012 the RO notified the Veteran that service connection had been granted for both, representing a full and final determination of the issues on appeal. Therefore, those issues are no longer before the Board. The claim has since been returned to the Board for further appellate action. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in March 2009; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the 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 previously remanded the Veteran's claim in June 2010 to provide the Veteran VA examinations and subsequent readjudication of his claims. Unfortunately, remand of the Veteran's claims for entitlement to a higher initial rating for asthma and entitlement to service connection for hypertension is again warranted. Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision. A. Asthma In an October 2005 rating decision, the RO granted service connection for asthma and assigned an initial rating of 30 percent. The Veteran appealed the issue of entitlement to an initial rating in excess of 30 percent. While the issue was on appeal, in December 2007, the RO severed service connection for asthma. The Veteran also appealed that decision. In June 2010, the Board granted the Veteran's appeal for restoration of service connection for asthma and remanded the Veteran's claim for a contemporaneous examination, noting that the scope of the issue of the propriety of the severance of service connection for asthma includes the issue of entitlement to an initial evaluation in excess of 30 percent for asthma. Following the Board's decision, in a June 2010 rating decision the RO granted the Veteran's appeal for restoration of service connection for asthma, evaluated as 30 percent disabling. The Veteran was afforded a respiratory conditions VA examination in January 2012. Following the January 2012 VA examination, the Veteran's claim for entitlement to an initial evaluation in excess of 30 percent was not readjudicated by the AOJ as required by the Board's June 2010 remand. As such, the Veteran's claim must be remanded for readjudication in compliance with the Board's June 2010 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). B. Hypertension In January 2012 the Veteran was afforded a VA examination in connection with his claim for entitlement to service connection for hypertension. The examiner diagnosed hypertension, but did not offer an opinion on service connection. In July 2012 the Veteran's claims file was returned to the VA examiner for a nexus opinion. The examiner did not offer an opinion on direct service connection but with regard to secondary service connection, he remarked that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service-connected condition, explaining that he could not find medical evidence that the Veteran was diagnosed or treated for hypertension while in service. The Board finds the January 2012 examination and July 2012 addendum are inadequate. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition to not specifically offering an opinion on direct service connection, the examiner did not address potentially pertinent evidence in the Veteran's service treatment records noted in the Board's June 2010 remand. Specifically, the Veteran's service treatment records show that beginning October 27, 2004, the Veteran was prescribed Norvasc. His blood pressure readings at that time ranged from 144 to 165 systolic and 74 to 84 diastolic. At his March 2009 Board hearing the Veteran testified he was put on medication for high blood pressure in service. Eight months after he left service, the Veteran's July 2005 VA examination showed blood pressure readings of 138/90, 136/92, and 138/94 with use of Norvasc and noted a diagnosis of hypertension in October 2004. On remand, the VA examiner should provide an addendum medical opinion addressing the above facts and offer an opinion with rationale as to direct service connection of the Veteran's hypertension. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the January 2012 VA examiner, if possible, for an addendum opinion on the etiology of the Veteran's hypertension. Specifically, the examiner should comment on the Veteran's Norvasc prescription and blood pressure readings in service and offer an opinion, with rationale, on whether it is at least as likely as not or less likely than not that the Veteran's hypertension was incurred in or caused by service. The entire claims file and this remand should be made available to and be reviewed by the examiner. 2. After completing the above action and any other development that may be indicated, the claim for entitlement to service connection for hypertension should be readjudicated. The RO should also readjudicate the Veteran's claim for an initial rating in excess of 30 percent for asthma. Readjudication of that issue should reflect review of all lay and medical evidence submitted since the April 2007 supplemental statement of the case. If either of the claims is denied, in whole or in part, the RO should provide the Veteran and his representative with a new supplemental statement of the case, and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ MICHELLE L. KANE 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).