Citation Nr: 1324213 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 02-08 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hypertensive heart disease, to include as due to herbicide exposure. 3. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1967 to July 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans Appeals (Board) on appeal from May 2001, February 2011, and March 2011 rating decisions by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The May 2001 decision denied service connection for hypertension. In a May 2004 decision, the Board denied service connection for hypertension; reconsideration of the decision was denied in June 2004. However, the Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court), which in June 2005, on the basis of a Joint Motion, vacated the Board's decision and remanded the matter for further consideration. The Board in December 2005 in turn remanded the matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The February 2011 decision denied service connection for a heart condition, while the March 2011 decision denied entitlement to TDIU. The Veteran testified at January 2003 and June 2010 hearings before a Decision Review Officer (DRO) at the RO regarding hypertension. In August 2007 the Veteran requested a hearing before a Veterans Law Judge. However, in October 2007 the Veteran withdrew this request. Subsequently, in January 2010 the Veteran requested a hearing before a Veterans Law Judge. However, in March 2010 in March 2010 correspondence the Veteran converted this request to one for a DRO hearing. He has not requested a hearing of any type in connection with the heart and TDIU claims. The case was again before the Board in June 2012 when it was remanded for further development. 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 In an April 2013 brief, the Veteran's representative argues that the Veteran's hypertension and heart disease are aggravated by his service-connected posttraumatic stress disorder (PTSD) and provides citations to medical literature to support these assertions. The Veteran's representative indicates that this theory of entitlement has not been considered. The Veteran was awarded entitlement to service connection for PTSD in an RO rating decision dated in March 2011. Although the Veteran was provided with VA medical examinations regarding his claims of entitlement to service connection for hypertension and heart disease in November 2000, May 2003, November 2006, February 2010, and November 2010, the Veteran was not in receipt of service-connected benefits for PTSD at that time, and the examiners did not render opinions regarding whether these disabilities were aggravated by his PTSD. As the Veteran's representative has argued that the Veteran's hypertension and heart disease are aggravated by his PTSD and has provided citations to medical literature regarding this association, the Board finds it necessary to afford the Veteran another VA medical examination. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran's representative further argued that there has not been adequate consideration of whether the Veteran is unemployable based upon his service-connected disabilities. In February 2010 the Veteran was afforded a VA general medical examination. The Veteran's usual work was noted to be in a warehouse. He had gradually attained an administrative level desk job, but he said he was not allowed to keep it because his chloracne made him too unpleasant to have in the office. In November 2010 the Veteran was afforded a VA psychiatric examination during which he reported that he was terminated from his previous employment due to his mental state and that he has been unemployed since due to his cardiac problems. No opinion was provided regarding whether the Veteran was unemployable due to his psychiatric disability. As there is evidence that the Veteran may be unemployable due to his psychiatric disability, the Board finds it necessary to afford the Veteran a VA medical examination. Friscia v. Brown, 7 Vet. App. 294 (1995). In addition, as the outcome of the Veteran's claims of entitlement to service connection for hypertension and hypertensive heart disease may impact upon the Veteran's claim of entitlement to a TDIU, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Since the claims file is being returned it should be updated to include VA treatment records compiled since November 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records regarding the Veteran dated since November 2012. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the etiology of any current hypertension and hypertensive heart disease. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on the examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's suffers from hypertension and/or hypertensive heart disease that is (a) related to his active service; (b) manifested within one year after discharge from active service in July 1969; or (c) is caused or aggravated by his service-connected PTSD. The examiner should comment upon the medical literature cited by the Veteran's representative in April 2013. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. The examiner should provide a complete rationale for any opinion provided. 3. Thereafter, schedule the Veteran for an appropriate VA examination regarding the Veteran's claim of entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether it is at least as likely as not that his service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant 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 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). _________________________________________________ M. E. LARKIN 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).