Citation Nr: 1324441 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-37 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disability. 3. Entitlement to a rating in excess of 50 percent for major depressive disorder. 4. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1972 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the record shows the Veteran introduced additional matters as to the issues on appeal at his hearing in April 2011 that require further development. Although the record shows he refused examination appointments at VA facilities in Pensacola, Florida, in July 2010, he indicated at his personal hearing in April 2011 that he would attend examinations. The Board finds that his service connection hypertension and heart disability claims may be adequately addressed by VA medical opinion without requiring an in-person examination. However, as to the increased rating issues on appeal, the Veteran should be notified that his appeal will be denied without consideration of the evidence if he fails to report for a scheduled VA examination without good cause. 38 C.F.R. § 3.655 (2012). The Veteran's service medical records include an April 1997 report indicating that treatment for blastomycosis had resulted in increased blood pressure, but that his blood pressure had been normal since September 1995. A June 1997 report noted he had complained of pleuritic chest pain that was intermittent in nature, without exertional qualities, for more than three years. In his November 1997 report of medical history the Veteran noted he had experienced high or low blood pressure and pain or pressure in his chest. The available records are negative for diagnoses of hypertension or heart disease. VA records show service connection is established for blastomycosis. VA treatment records show the Veteran has hypertension and that he underwent mitral valve repair at a private hospital in 2004. The records of that private treatment are not included in the available record. In statements and personal hearing testimony the Veteran reported that he had been followed for hypertension during service from 1993 to 1998 and that an October 2000 VA Persian Gulf screening indicated he required mitral valve repair or replacement. In correspondence provided at his April 2011 hearing, the Veteran also asserted that pertinent VA treatment records dated from January 2004 to January 2009 were missing or had been changed. Additionally, he stated that he had submitted a service connection claim for his heart disability as part of a VA fee basis treatment claim in Biloxi, Mississippi. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate claims. In claims for disability compensation, that duty requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2) (2012). The duty to assist includes conducting a thorough and contemporaneous medical examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board finds that further development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal including the non-VA treatment associated with his heart surgery in 2004. He should provide additional information identifying any VA treatment records dated from January 2004 to January 2006 he believes are missing from his record and to specifically identify any VA treatment records he believes have been changed. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, including an October 2000 Persian Gulf screening report and treatment records dated from January 2004 to January 2006, and any service connection claim received as part of the Veteran's VA fee basis treatment claim in Biloxi, Mississippi, unless further efforts would be futile. All efforts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified any unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain a VA medical opinion from an appropriate specialist addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran has hypertension or a heart disability as a result of service or a service-connected disability. The opinion should be provided based on the findings of any necessary additional examinations; review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Schedule the Veteran for a VA examination for opinions as to the nature and severity of his service-connected major depressive disorder. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be conducted. The Veteran is hereby notified that his appeal may be denied without consideration of the evidence if he fails to report for a scheduled VA examination without good cause. 4. Schedule the Veteran for a VA examination for opinions as to the nature and severity of his service-connected bilateral hearing loss. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be conducted. The Veteran is hereby notified that his appeal may be denied without consideration of the evidence if he fails to report for a scheduled VA examination without good cause. 5. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).