Citation Nr: 1326232 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-19 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure or service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating greater than 50 percent for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1967 to November 1968, including in combat in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted, in pertinent part, the Veteran's claim of service connection for PTSD, assigning a 50 percent rating effective December 7, 2007, and denied the Veteran's claim of service connection for hypertension, to include as due to herbicide exposure or service-connected PTSD. Although the Veteran initially requested a Travel Board hearing when he perfected a timely appeal on these claims in May 2009, he subsequently withdrew his Board hearing request in September 2010. See 38 C.F.R. § 20.704 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred hypertension during active service. He alternatively contends that either his in-service herbicide exposure while on active combat service in the Republic of Vietnam or his service-connected PTSD caused or contributed to his hypertension. He finally contends that his service-connected PTSD is more disabling than currently evaluated. Having reviewed the record evidence, the Board finds that additional development is necessary before either of the currently appealed claims can be adjudicated on the merits. With respect to the Veteran's service connection claim for hypertension, his available service personnel records show that he had active combat service in the Republic of Vietnam. Thus, his in-service herbicide exposure is presumed. See generally 38 C.F.R. §§ 3.307, 3.309 (2012). Despite the Veteran's assertions to the contrary, hypertension is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. See 38 C.F.R. § 3.309(e) (2012). A review of the record evidence shows that the Veteran currently is diagnosed as having hypertension which could be attributed to active service. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. To date, the Veteran has not been provided with a VA examination to determine the nature and etiology of his hypertension, to include as due to herbicide exposure or service-connected PTSD. The Board also notes that a VA heart examination may have occurred in September 2010. A review of a Decision Review Officer (DRO) Informal Conference Report dated on September 21, 2010, and included in the Veteran's claims file shows that the Veteran, his service representative, and a DRO from the RO agreed at this informal conference that a VA heart examination would be scheduled for him. A review of a "Compensation and Pension Examination Inquiry" report dated on September 22, 2010, and included in the Veteran's claims file shows that a VA heart examination was requested by RO personnel that same day. A subsequent "Compensation and Pension Examination Inquiry" report dated on February 1, 2011, shows that this VA heart examination request was "Completed." Following an extensive review of the Veteran's claims file, to include voluminous VA outpatient treatment records and examination reports in his Virtual VA claims file, the Board is unable to locate a copy of the September 2010 VA heart examination report, however. It is not clear whether this examination occurred or, if it occurred, whether it addressed the Veteran's contentions regarding his hypertension. The Board observes that hypertension is considered a "cardiovascular-renal disease" (a chronic disease) for VA purposes. See 38 C.F.R. § 3.309(a) (2012). Given the foregoing, the Board finds that, on remand, a copy of the September 2010 VA heart examination should be located or, if this examination report cannot be found, then the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his hypertension. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's higher initial rating claim for PTSD, he essentially contends that this disability has worsened since his most recent VA examination. A review of the Veteran's claims file shows that his most recent VA PTSD examination occurred in March 2011. The Board again notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA PTSD examination in March 2011, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected PTSD. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Although the RO requested the Veteran's Social Security Administration (SSA) records from SSA and received these records in July 2008, a detailed review of these records shows that they do not include a copy of any administrative decision(s) awarding him SSA disability benefits. The Veteran submitted a copy of an SSA award letter dated in December 2003 showing that he had been found to be disabled by SSA effective in January 2001. VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, and because this appeal is being remanded for other development, the Board finds that, on remand, the RO/AMC must contact SSA again and request a copy of any administrative decision(s) on the Veteran's application for SSA disability benefits. The Board emphasizes that the Veteran's complete SSA records already are of record and should not be requested again from SSA; the RO/AMC must limit its request to SSA to a copy of any administrative decision(s) on the Veteran's application for SSA disability benefits and not his complete SSA records. It appears that the Veteran's complete service treatment records also are not currently associated with his claims file. In response to a request for the Veteran's service treatment records, the National Personnel Records Center in St. Louis, Missouri (NPRC) notified the RO in July 2007 that it had sent these records to VA previously on August 6, 1970. Additional service treatment records were provided in July 2007 as well. It appears that the Veteran's original claims file may have been lost as there is internal VA email correspondence in the claims file indicating that it was rebuilt in July 2007. Given the Veteran's contentions regarding in-service incurrence of hypertension, the Board finds that, on remand, the RO/AMC should attempt to obtain the Veteran's complete service treatment records. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Conduct a one-time search of the RO's facilities for the Veteran's complete service treatment records. These records may have been sent to the RO by the National Personnel Records Center in St. Louis, Missouri (NPRC), in August 1970. Document all efforts to locate the Veteran's complete service treatment records at the RO's facilities in the claims file. If these records cannot be located, then this fact should be noted in the claims file and the Veteran should be asked to submit any copies of his service treatment records which may be in his possession. A copy of any letter sent to the Veteran should be included in the claims file. Any service treatment records obtained, to include a negative reply from the Veteran, should be included in the claims file. 2. If, and only, if the Veteran's complete service treatment records cannot be located following a one-time search of the RO's facilities, then contact the appropriate Federal records repository and request the Veteran's complete service treatment records and service personnel records. A copy of any records obtained, to include a negative reply, should be included in the claims file. 3. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for hypertension or for PTSD since his service separation. Obtain all VA treatment records which have not been obtained already, to include a copy of a VA heart examination requested by the RO on September 22, 2010, if available. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 4. Contact the Social Security Administration and request a copy of any administrative decision(s) on the Veteran's application for SSA disability benefits. The Board emphasizes that the Veteran's complete SSA records already are of record and should not be requested again from SSA; the RO/AMC must limit its request to SSA to a copy of any administrative decision(s) on the Veteran's application for SSA disability benefits and not his complete SSA records. A copy of any administrative decision(s) on the Veteran's application for SSA disability benefits obtained from SSA, or a negative reply, should be included in the claims file. 5. If, and only if, a copy of a VA heart examination requested by the RO on September 22, 2010, is not available, then schedule the Veteran for appropriate VA examination to determine the nature and etiology of his hypertension. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service or any incident of service. The examiner also is asked to opine whether the Veteran's service-connected PTSD caused or aggravated (permanently worsened) his hypertension, if diagnosed. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that he incurred hypertension during active service. The examiner also is advised that the Veteran alternatively contends that his service-connected PTSD caused or aggravated his hypertension. 6. Schedule the Veteran for appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the Veteran's service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. The examiner finally is asked to state whether the Veteran's service-connected PTSD is manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 7. The Veteran should be given adequate notice of the requested examinations, if scheduled, which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 8. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if 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). _________________________________________________ DEBORAH W. SINGLETON 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).