Citation Nr: 1329753 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-00 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2011, the Board denied a claim for service connection for diabetes mellitus and reopened the claim for service connection for hypertension. The hypertension claim was then 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 As noted above, the Board reopened the claim for service connection for hypertension and remanded it for further development. The remand directed VA to ask the Veteran to provide or authorize VA to obtain any medical records not already associated with the file. The remand also directed VA to provide the Veteran a VA examination with the examiner providing an opinion as to whether the Veteran's hypertension had its onset in or is otherwise related to service. V sent a letter requesting the Veteran to identify medical providers in November 2011 and to date, the Veteran has not responded. In December 2011, the Veteran was provided a VA examination. The examiner's opinion, however, is inconsistent regarding the onset of hypertension. At one point, the examiner states the Veteran's hypertension was diagnosed in active duty in March 1977 and he has been taking hypertension medicine since the March 1977 diagnosis. At another point, the examiner stated that there is no evidence the Veteran was diagnosed with hypertension or had clinically significant blood pressure while in service and there was no evidence that he had hypertension to a compensable degree within a year after discharge from service. Therefore, the Board finds the examination inadequate and a new examination is required. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, before the remand, the Veteran identified two private medical providers, Dr. M. Tomas and MARC Center. The RO made a request for the records of MARC Center in January and March 2008, but there was no response. It also made a request for the records of Dr. Tomas and received a response in March 2008. Those records, however, do not relate to the Veteran but instead discuss another patient. Therefore, upon remand, another request should be made to Dr. Tomas to obtain the correct set of records concerning the Veteran. Under the circumstances, the Board also finds the Veteran should be provided another opportunity to have the records of MARC Center associated with the file. Recent legislation provides that VA must make two attempt to obtain private records unless the first attempt reveals that further attempts would be futile. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2012)). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to either submit or authorize VA to obtain the records of Dr. M. Tomas and MARC Center and any other private medical providers who have treated the Veteran for hypertension. The RO should attempt to obtain these records once authorization is obtained. All efforts to obtain these records must be documented in the file. The RO/AMC should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran that he may submit any such records in his possession. 2. After the record development is completed, provide the Veteran a VA examination for the claim of service connection for hypertension. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran currently has hypertension or has had hypertension at any point during the claims period, and, if so, whether it is at least as likely as not (50 percent probability or more) that hypertension had its onset during service or is causally or etiologically related to service or was manifested within a year of service. The examiner is asked to comment on the notations of blood pressure in the March 1977 separation examination. A complete rationale must be provided for any opinion offered. 3. After the development requested is completed, readjudicate the claim for service connection for hypertension. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).