Citation Nr: 1328848 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-12 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disability, to include as secondary to hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to October 1989; and from October 2001 to August 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the Veteran's hypertension and heart disability service connection claims. In January 2009, the Veteran submitted a timely notice of disagreement (NOD), and the RO subsequently issued a March 2010 statement of the case (SOC). In a March 2010 Inquiry, the Veteran expressed his disagreement with the March 2010 statement of the case; the RO accepted the Veteran's contentions in lieu of a VA Form 9, substantive appeal to the Board. In March 2010 correspondence, the Veteran withdrew his request for a Board hearing. A June 2009 determination denied the Veteran's claim for pension. The Veteran submitted a timely June 2006 NOD with the determination. In July 2009, the RO issued a SOC, and the Veteran subsequently issued a substantive appeal. In March 2011 correspondence, the Veteran raised a claim for individual unemployability. By way of July 2011 correspondence, the Veteran withdrew his appeal for pension; as well as his claim for individual unemployability. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The evidence of record indicates that the Veteran's claimed heart disorder may be related to hypertension. As such, the heart disability issue has been recharacterized accordingly. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Board's review of the claims file reveals that further RO action in regard to the issues of service connection for hypertension and a heart disability is warranted, even though such will, regrettably, further delay an appellate decision. The Veteran was provided a VA examination in March 2010. The resulting opinion reflects that the examiner essentially concluded that the Veteran had hypertension that was less likely than not related to the one elevated blood pressure noted during a November 2001 civilian employment examination the Veteran underwent while on active duty. The examiner did note, however, that he did not have all of the Veteran's service treatment records in order to determine whether or not the current hypertension incurred in service. The examiner did not offer an opinion as to whether or not the Veteran had a heart disability. Subsequent to the March 2010 VA examination, the RO received additional pertinent medical evidence to include, the Veteran's service treatment records from his second period of service, that includes a February 2002 dental treatment record that documents a blood pressure of 165/91. See volume 5 of the claims file. Also received, were treatment records from Saint Joseph's Hospital and Medical Center that includes a December 2002 record that documents a diastolic pressure of 97. See volume 5 of the claims file. The RO readjudicated the Veteran's claims without first allowing the examiner to review these records. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the March 2010 VA examination opinion does not reflect review of all the pertinent evidence of record, another opinion is warranted. Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Accordingly, the RO should return the claims file to the March 2010 examiner for an addendum opinion. The RO should only arrange for further examination of the Veteran if that examiner is unavailable, or if further examination of the Veteran is deemed necessary. With respect to the Veteran's service connection for a heart disability, to include as due to hypertension, it is unclear from the medical evidence of record, whether or not the Veteran actually has a current heart disability. The Board notes, however, because the Veteran's hypertension claim is being remanded for additional development, and because adjudication of the hypertension claim being remanded likely will impact adjudication of the Veteran's heart disability claim, this claim is inextricably intertwined with the other currently appealed hypertension claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As noted, the evidence of record indicates that the Veteran's heart disorder may be related to the hypertension. The Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for a heart disability. Such should be accomplished on remand. Finally, in an April 2013 statement, the Veteran indicated that a physician at East Orange General Hospital took his blood pressure twice during a December 16, 2002 physical. The Veteran reported that his blood pressure was 160/93, and 160/92. Upon further review of the claims file, the Board observes that in volume 3 of the claims file there is a December 16, 2002 chest x-ray report from East Orange General Hospital, but the accompanying physical does not appear to have been associated with the claims file. The Board also notes that in the Saint Joseph's Hospital and Medical Center December 24, 2002 report, there is a reference to a December 2002 physical the Veteran had at East Orange General Hospital. Currently the claims file contains the Veteran's service treatment records; VA treatment records dated from December 2003 through August 2012 that also includes records from the Veteran's treating VA provider Dr. A. S.; records from the East Orange Police Department; a November 2001 physical examination report from Hackensack University Medical Center; a December 2002 chest x-ray report from East Orange General Hospital; a December 2002 treatment report from Saint Joseph's Hospital and Medical Center; and records from Social Security Administration. VA is required by the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. As this case is being remanded for additional development, the RO/AMC must again take appropriate steps to gather any newly generated VA treatment records and associate them with the claims file. The RO/AMC should also, to the extent possible, obtain the December 2002 physical examination report from East Orange General Hospital. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for a heart disability as secondary to a service-connected disability. 2. Inform the Veteran of the medical evidence currently of record and ask if he has any additional evidence that should be obtained. After securing any necessary authorization from him, to include an updated authorization for the December 2002 physical examination report from East Orange General Hospital, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain and associate with the claims file any outstanding VA treatment records relevant to the Veteran's hypertension and heart disability dated from August 2012 to the present. 4. Following receipt of the foregoing records, the claims file should be returned to the March 2010 VA examiner for an addendum opinion regarding the current hypertension and any heart disability. The claims folder and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the entire claims folder, to include the Veteran's service treatment records, records from Saint Joseph's Hospital and Medical Center, as well as the December 2002 physical examination report from East Orange General Hospital (if available), have been reviewed. If the March 2010 examiner is unavailable, please forward the claims file to an appropriate medical professional to render an opinion regarding the following inquiry. The Veteran should not be scheduled for a VA examination unless the medical professional selected to offer an opinion deems an examination necessary in order to render the requested opinion. Following a review of the claims file, to include service treatment records, private treatment records, and any recently received VA or private treatment records, the examiner is asked to clarify whether any diagnosed hypertension disorder is at least as likely as not related to service. The examiner is asked to explain the basis of any opinion reached. The Board observes, also, if after a review of the entire claims file, the Veteran is found to have a heart disability, the examiner should express whether any heart disability is at least as likely as not related to the Veteran's active service; and if not, if and only if, the Veteran's hypertension is found to be service-related, whether the heart disability is proximately due to the hypertension. As a separate response, if the heart disability is not directly related to active service, the examiner should also state whether it is at least as likely as not aggravated (permanently worsened beyond its natural progression) by the "service-connected" hypertension. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The supporting rationale for all opinions expressed must be provided. If the examiner cannot respond without resorting to speculation, he/she should explain why a response would be speculative. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the AMC/RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims 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). _________________________________________________ MARJORIE A. AUER 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).