Citation Nr: 1329122	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-16 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for asthma.

2.  Entitlement to service connection for bilateral hearing loss disability.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran presented testimony at a Board hearing in June 2012, and a transcript of the hearing is associated with his claims folder.  These matters on appeal were remanded in November 2012 for further development.

The Board has reviewed all evidence of record, including that found on Virtual VA.  

The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's asthma was noted upon entry into active duty service.

2.  The Veteran's asthma did not increase in severity during service beyond the natural progress of the disease.

3.  The Veteran's current sensorineural hearing loss disability was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 

4.  The Veteran's current tinnitus disability was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for asthma are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012).

2.  The criteria for service connection for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

3.  The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).

The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the Veteran pre-adjudication notice by a letter dated in August 2007.  The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a claimant under the VCAA.  VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for asthma, hearing loss, and tinnitus; and afforded the Veteran the opportunity to give testimony before the Board.  The examinations were adequate as the opinions necessary were rendered, with adequate rationales expressed.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  The RO complied with the Board's November 2012 remand by obtaining additional records, examining the Veteran, and readjudicating the claims.  

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time.  

Pertinent criteria

The Veteran seeks service connection for asthma, bilateral hearing loss disability, and tinnitus, and so the issues before the Board involve claims of entitlement to service connection.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For VA compensation and pension purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2008).  

The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to a hearing loss claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385...  For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service.  38 U.S.C.A. §§ 1132, 1137.

The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  

For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111on claims for service-connected disability:

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition.  38 U.S.C.A. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection.  This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.  See 38 C.F.R. § 3.322.

On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096.

The provisions of 38 C.F.R. § 3.306 indicate that a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.

Asthma

Upon review of the service treatment records, the Board finds that the Veteran's preexisting asthma was noted upon entry into service.  In the Veteran's January 1968 report of medical history, he indicated that he had or had had asthma.  The examiner elaborated that this had been in childhood, and not since.  On clinical evaluation, the Veteran's lungs were found to be abnormal, but his lungs had normal sounds.  It is clear that the preservice history of asthma was explored at that time as evidenced by a January 1966 letter from a private physician indicates that the Veteran had been seen in his office since 1959, and that the working diagnosis was bronchial asthma, extrinsic and infective.  The Veteran had a history of bronchial asthma since age 1 which was perennial in occurrence and usually worse during the winter months.  Nasal symptoms were associated with asthma.  He had been treated with hyposensitization therapy since 1959, weekly at first and biweekly for the past several years.  His last asthma episode had occurred about 4-5 years prior.  This background information which was effectively made part of the entrance examination medical report together with the finding of clinically abnormal lungs persuades the Board that the preexisting asthma was in fact noted on entry into service.  

On service evaluation in September 1969, the Veteran complained of chest pain and insomnia for 2 days.  He had been taking Librium for relief.  He had also noted shortness of breath with chills.  On examination, his lungs were clear to auscultation and percussion.  A chest X-ray was normal, and the impression was insomnia, nervousness.  Later in September 1969, he complained of chest pain since the last month.  He had a history of asthma, occasional cough, shortness of breath, and feeling dizzy.  On examination, his lungs were clear to percussion, but auscultation revealed expiratory wheezing.  There was an assessment of spastic bronchitis.  

In October 1969, the Veteran complained of chest pain.  On examination, his chest was clear.  The impressions were dyspepsia and anxiety.  In November 1969, the Veteran complained of chest pain and the impressions were dyspepsia and anxiety.  

On service discharge examination in March 1970, the Veteran again reported having or having had asthma, and that he was in good health.  Clinically, his lungs were normal, and asthma was not diagnosed.  

Post-service, pneumonia, bronchitis was found in February 2002; a chest X-ray for chest and right upper quadrant pain was normal in July 2003; and asthma exacerbation was assessed in about 2004, when the complaint was wheezing; wheezing and shortness of breath were found.  Advair was prescribed and albuterol was refilled.  In March 2005, the Veteran was feeling better.  

On VA examination in January 2010, the Veteran's pre-service, service, and post-service history was reviewed.  The Veteran advised that before service, exertion, among other things, would set off an asthma attack.  He indicated that his asthma symptoms improved while he was in the service, that his attacks were less severe and less frequent during that time, and that it continued to improve after service.  His asthma since service had been well controlled.  He used albuterol as needed, about once a month.  He had not had a severe attack or gone to the emergency room in several years.  On examination, his lungs were clear with no wheezes and good air exchange, and he had no cyanosis, clubbing, or edema.  Since the Veteran's asthma was bad as a child and the Veteran indicated that it improved during and after service, in the examiner's medical judgment, the Veteran's asthma less likely than not was permanently worsened beyond its natural progress during his time in service.  

During the Veteran's June 2010 hearing, he indicated that he got shots and an inhaler before service, for asthma.  In service, he began to experience severe symptoms, because of stress and physical exertion.  The service department provided him with an inhaler in service, and he found that he had to use it more frequently than before service.  In service, the symptoms he experienced were pounding rapid heart and sweating, which interfered with his duties from time to time.  When he got out, he was still having problems, and it got worse.  Accordingly, he believed that at the time he got out of service, it was more severe than it was when he went into service.  The Veteran indicated that post-service, when he exerted himself more, he had to use medication more, and he had to see Dr. Becker more.  He saw him up until about 1975.  

On examination in January 2013 by the same examiner that had examined the Veteran in January 2010, the Veteran added that in service, his asthma got a little worse because he was in a higher altitude, and also due to exertional activities in service.  He further added that his asthma had slowly worsened through the years.  His records were again reviewed.  The examiner noted that all current treatment was through VA; that budesonide/formoterol was last prescribed in May 2012, with no refills since; that albuterol had been refilled 10 times in the last year, and only twice in 2013; and that the Veteran had not had a severe attack or gone to the emergency room in several years.  The examiner concluded that based on the last several years, it was less likely than not that there was an increase in severity of the Veteran's preexisting asthma during service beyond the natural progress of the condition.  

After reviewing the totality of the pertinent evidence, the Board further finds that there was no aggravation of the preexisting asthma during service.  There was only one instance of expiratory wheezing noted in service, in September 1969.  Otherwise, impressions were of anxiety, insomnia, and dyspepsia, and the Veteran was normal on service discharge examination.  Moreover, a VA examiner has twice considered the Veteran's claims folder and his reported medical history, and has concluded, based on his medical judgment, that the Veteran's asthma was not permanently worsened beyond its natural progress during his time in service.  

While the Veteran had symptoms in service, temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability.  See Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991). 

The Board notes that the Veteran indicated in January 2008 that the service aggravated his asthma; and that he testified in June 2010 that he believed that in-service symptoms were indicative of a worsening of his asthma while in service, and that his asthma was more severe when he was discharged than when he went on active duty.  However, statements about in-service treatment and worsening which the Veteran made during his hearing are not supported by the overall record.  To the contrary, he was normal on service discharge examination.  Moreover, the doctor who concluded that the Veteran's asthma did not increase in its severity beyond its natural progression in service is trained in medicine, and used medical judgment, after considering, among other things, the objective pre-service, service, and the post-service medical evidence of record.  Accordingly, the VA medical opinions are accepted as dispositive.  Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records).

The representative argued in June 2013 that the Veteran uses a CPAP machine for sleep apnea, and that this could lessen the asthma attacks as well as the severity of the asthma attacks, which would also lessen the need for treatments.  He may feel that this undermines the January 2013 VA examiner's opinion that it was less likely than not that there was an increase in the severity of the Veteran's preexisting asthma during his time in service beyond its normal progression because the Veteran had not had a severe attack or the need for an emergency room visit for years.  However, the Board is not persuaded by this argument, as the examiner in January 2013 noted that the Veteran was currently using a CPAP machine, in concluding that there probably was not an increase in service beyond natural progression.  

Hearing loss and tinnitus

On service entrance examination in January 1968, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5

5
LEFT
20
5
5

5

Service treatment records are silent for reference to hearing loss and tinnitus.  The Veteran specifically denied having or having had ear trouble and hearing loss on service discharge examination in March 1970, and his ears and neurologic system were clinically normal at that time.  


Puretone thresholds, in decibels, were:  




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
15
10
10
10
10

In October 2004 and again in May 2007, the Veteran was privately treated for dizziness, and he denied ringing in his ears.  

In July 2007, the Veteran claimed service connection for hearing loss and tinnitus, claiming that tinnitus began in 1969.  

On VA examination in February 2010, the Veteran's medical history regarding hearing loss and tinnitus was reviewed, with the service and October 2004 and May 2007 medical records being considered.  The Veteran advised that he had been a Pershing missile specialist in service, and was an electrical launcher operator.  He wore hearing protection devices but it was still very loud.  Post-service, he worked in steel mills for 2 years, and then for a large electrical supplier for 25 years.  He denied any head or ear trauma.  He was found to have tinnitus.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
40
40
40
LEFT
25
45
55
50
50

Speech recognition scores, using the Maryland CNC test, were 92 percent in the right ear and 82 percent in the left ear.  The Veteran was found to have sensorineural hearing loss bilaterally.  

As for the question of relationship to service, the examiner opined that given the normal hearing sensitivity on service discharge examination, subsequent occupational noise exposure, and an Institute of Medicine Report concerning noise exposure in service, it was less likely that the Veteran's current hearing loss was service-connected.  The Institute Report concluded that sensorineural hearing loss occurs immediately after exposure, rather than in a delayed fashion.  Also, most scientific evidence shows that noise exposed ears are not more sensitive to future noise exposure, and that hearing loss due to noise exposure does not progress once the exposure to the noise is discontinued.  

Next, given that the Veteran's hearing sensitivity was within normal limits at separation, his subsequent noise exposure, and his denial of tinnitus in a 2007 medical notation well after his time in service, it was less likely that his current tinnitus is service-connected.  

During the Veteran's June 2010 hearing, he indicated that in service, he drove big trucks for Pershing missiles, was right next to a very loud missile launcher, had ear aches, and ringing in his ears started.  He indicated that he was told after auditory testing in about 1977 that he had some hearing loss.  He also indicated that he first began experiencing tinnitus in service.  He complained about it a few times, and it became pretty constant in service.  He had suffered from it ever since service.  

On VA examination in February 2013, the Veteran's history was reviewed.  He indicated that he had had hearing loss for a long time, and had been in denial about it until he went for treatment in 2008.  The Veteran was not consistent with audiometry testing, and so the results were not considered reliable.  The examiner opined that it was less likely than not that whatever hearing loss may exist was related to in-service noise exposure.  This was based in part on data available on the recovery process following noise exposure.  It was felt that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure, given his normal hearing sensitivity on service separation, and his denial of tinnitus in 2007, well after service.  

Based on the evidence, the Board concludes that service connection is not warranted the Veteran's current bilateral sensorineural hearing loss disability, as it was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to any incident of service.  First, it was not shown in service.  Instead, there were no hearing complaints in service and the Veteran's hearing was normal on service discharge examination.  Next, it was not manifest to a degree of 10 percent within 1 year of separation.  Instead, it was first shown many years after service, with the Veteran giving no reliable indication that it began in or proximate to service, and continuity of symptomatology since service not shown.  Furthermore, the evidence indicates that it is unrelated to service.  Two VA examiners have considered the Veteran's service records and medical history and have rendered negative nexus opinions regarding his current bilateral hearing loss disability and service noise exposure.  

Also based on the evidence, the Board concludes that service connection is not warranted for tinnitus, as it was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service.  On the matter of manifestation in service or to a degree of 10 percent within one year of separation, the Board finds it probative that tinnitus is not shown in service treatment records, that the Veteran denied tinnitus symptomatology on service discharge examination, and that the Veteran denied having tinnitus on evaluations in 2004 and again in 2007, shortly before he filed his claim, and only since that time has he been indicating that it has been present since service.  This statement is of questionable credibility and is outweighed by his denials on service discharge examination, the absence of any notation of tinnitus for years after service, and his denial of tinnitus on treatments in 2004 and 2007.  On the matter of relationship to service, 2 VA examiners have considered the Veteran's history of in-service noise exposure and concluded that his tinnitus is unrelated to service.  There is no competent medical evidence of record to the contrary.  

The Veteran representative argued in June 2013 that conceded exposure to hazardous noise was not considered in the Veteran's case.  However, the Board notes that the VA examiners in 2010 and 2012 considered in-service noise exposure in rendering their nexus opinions regarding hearing loss and tinnitus.  The representative also argued out that hearing loss at separation is not required in order for service connection for hearing loss to be granted.  Under Hensley, VA as adjudicators cannot maintain that hearing loss disability needs to be shown on service discharge examination in order for service connection to be granted.  However, medical professionals are entitled to base their medical opinions on medical evidence they have considered.  In this case, the absence of hearing loss disability on service discharge examination is something they are permitted to consider.  The examiner had the benefit of service treatment records and did not attribute any significance to any differences in the decibel thresholds recorded at entry and discharge from service.  

The representative argues that the Board may accept the Veteran's statements regarding the presence and onset of tinnitus.  As is indicated above, the Board has chosen to accept the statements concerning tinnitus which the Veteran made on service discharge examination and during private treatment in 2004 and 2007 over those he has made in the subsequent VA compensation context.  

The preponderance of the evidence is against the claims and there is no doubt to be resolved.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).  Accordingly, the claims should be denied.


ORDER

Service connection for asthma is not warranted.  Service connection for bilateral hearing loss disability is not warranted. Service connection for tinnitus is not warranted.  To this extent, the appeal is denied.


REMAND

The Veteran claims service connection for hypertension.  Service treatment records show that in September 1969, his heart had a normal rhythm and his blood pressure was 130/80.  Later that month, it was reported that he had a history of hypertension.  Blood pressure was not recorded at that time or in October 1969, when his heart rhythm was noted to be normal.  The Veteran denied having or having had pain or pressure in his chest, palpitation or pounding heart, and high blood pressure on service discharge examination in March 1970, and his heart was normal and his blood pressure was 110/70 at that time.  Post-service treatment records first show hypertension in October 2002, and on private evaluation in October 2005, the Veteran advised that he had had hypertension for 4 years and was a reformed smoker.  In July 2007, when he filed his compensation claim, is when he first indicated that his hypertension began in 1969.  Since then, he testified in June 2010 that hypertension was diagnosed about a year post-service.   

The Board remanded the case to the RO in November 2012, in an attempt to obtain additional records and to examine the Veteran for his hypertension claim.  The Veteran had testified in June 2010 that he had received treatment for hypertension from a Dr. Becker until 1975, and that he had thereafter been treated elsewhere until 2001.  The Veteran failed to cooperate with the RO's request to obtain additional private medical records following the Board's remand.  Thereafter, a VA examination was conducted, and the examiner found that the Veteran currently has hypertension.  However, the examiner indicated that he could not resolve the question of whether the Veteran's current hypertension was manifest during service or within 1 year of discharge, or was causally related to service, without resorting to mere speculation.  The examiner gave no explanation for why he could not render the opinion without resort to mere speculation.  Accordingly, remand for corrective action is required.  The examiner did not provide any discussion concerning the conclusion that was drawn.  The Board notes that there are no other positive or negative medical opinions concerning the Veteran's hypertension contained in the claims folder.

In light of the above, the January 2013 VA examination is deemed inadequate to adjudicate the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Thus, another opinion, containing a sufficient rationale and supporting explanation must be provided.  If the examiner finds that a response would require resort to speculation, the reason for this must be explained in detail.  For example, he or she should note whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to render an opinion.  See also Jones v. Shinseki, 23 Vet. App. 382 (2010) (the Court held that in order to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record.)  See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

Since this claims needs to be remanded for an adequate VA examination, the Veteran will be given another opportunity to submit medical records relevant to it.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should ask the Veteran to identify any and all providers of treatment he has received for hypertension since his discharge from service in March 1970, and to provide any authorizations necessary for VA to obtain records of any such private treatment.  Of particular interest are records from Drs. Becker and Castro, Silver Cross Hospital, Joliet Doctors Clinic, Commonwealth Edison (including its successor) and all records of VA treatment.  The RO should secure for the record copies of complete pertinent clinical records (i.e., those not already associated with the claims folder) from the sources identified, including any additional records on Virtual VA.

2.  After obtaining the above evidence, to the extent available, the RO should schedule the Veteran for an examination to determine the etiology of his current hypertension.  A copy of this remand as well as the claims folder and records on Virtual VA should be provided to the examiner for review in conjunction with the examination.  After reviewing the file and the remand, the examiner must render an opinion as to whether it is at least as likely as not that the Veteran's current hypertension disability was manifest in service or within 1 year of discharge, or is otherwise causally related to service.  Findings such as the in-service blood pressure readings and histories, the history furnished in October 2005, and the absence (if this continues) of any treatment records showing hypertension from shortly post-service may be considered in the opinion.  

The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions.  It should be noted that a nonresponse will not be accepted as an adequate response to the Board's inquiry.  If the examiner concludes that the opinions requested cannot be answered without resort to mere speculation, a detailed explanation for why this is the case should be provided.

3.  Thereafter, the RO should readjudicate the Veteran's pending claim in light of any additional evidence added to the record.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs