Citation Nr: 1332767 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-06 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A hearing was held before the undersigned Veterans Law Judge at the RO in May 2012. A transcript of the hearing is of record. The Board remanded the case for further development in February 2013. The case has since been returned to the Board for appellate review. The Board notes that, following the most recent supplemental statement of the case (SSOC) in April 2013, a waiver of the waiting period to return the case to the Board was submitted by the Veteran's representative that same month. Shortly thereafter, the Veteran submitted a statement indicating that he did not waive his right for a 30-day extension of time, as he needed additional time to gather and prepare evidence for his claim. The Board accepted this submission as a motion for a 30-day extension of time to submit additional evidence and granted the motion in August 2013. The Veteran did not submit any additional evidence within the 30-day period from the date of the Board notification letter, nor did he submit another request for an additional extension of time. In light of the foregoing, the Board finds no prejudice to the Veteran in proceeding with consideration of this case at this time. 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 The Board finds that further development is necessary prior to final adjudication of the Veteran's claim. The Veteran contends that his hypertension is secondary to his service-connected asbestosis. In particular, he believes that there is a correlation between his difficulty breathing and his hypertension. See, e.g., May 2012 Bd. Hrg. Tr. at 3, 7. In response to the Board's February 2013 remand, the Veteran was afforded a VA examination in March 2013. The examiner determined that it was less likely than not that the Veteran's hypertension was caused by or permanently aggravated by his asbestosis. In so finding, the examiner noted that the Veteran had evidence of some plaquing secondary to asbestosis, but commented that his major pulmonary abnormalities resulted from nonservice-connected emphysema and chronic obstructive pulmonary disease (COPD), which were unrelated to asbestosis. She also indicated that there was no "medical nexus" relating hypertension to the "minimal" pulmonary findings of asbestosis. In addition, the examiner stated that there was no aggravation of hypertension from asbestosis and commented that the decreased air movement in the lungs on physical examination was consistent with emphysema and not asbestosis. On review, it is unclear whether the noted pulmonary findings related to asbestosis, however minimal, could have resulted in any additional difficulties with the Veteran's hypertension. It is also unclear if the February 2013 VA examiner fully considered the Veteran's reported dyspnea (shortness of breath) in light of the medical evidence of record, as noted below. In a March 2013 private treatment record, Dr. F.A. (initials used to protect privacy) noted the Veteran's report of dyspnea with exertion and determined that a rise in blood pressure during periods of shortness of breath "makes sense" because there is a high adrenaline level in the body with shortness of breath, which in turn causes more stress and high blood pressure. The doctor noted a history of COPD and asbestos exposure, but it is unclear if he contemplated the Veteran's service-connected asbestosis in providing this determination. Moreover, it is unclear if such a rise in blood pressure would be temporary or permanent. The post-service medical records note ongoing complaints of dyspnea on exertion, with varying opinions on the relationship between this symptomatology and his nonservice-connected COPD and/or asbestosis. In this regard, opinions in private treatment records suggest that the Veteran's COPD was the underlying cause of the dyspnea, but are speculative in nature without complete rationale. See November 2003 private treatment report ("severely decreased breathing reserve probably due to his underlying emphysema"); August 2004 private opinion ("suspect" COPD is main reason for dyspnea; pleural changes "unlikely to be contributing" to current symptomatology). In a September 2011 VA respiratory examination clarifying opinion, the examiner indicated that it was at least as likely as not that current obstructive changes and a certain pulmonary function test measurement deficiency were due to COPD and not asbestosis; however, because both disorders cause similar symptoms of dyspnea and cough, the examiner could not separate the symptoms attributable to each disorder. A January 2012 VA treatment record notes review of a pulmonary clinic record from the month prior indicating that dyspnea was "suspect sec[ondary] to restrictive disease given normal cardiac screening and lack o[f] response to inhaled bronchodilators. Asbestos pleuropulmonary disease." In light of the above, and to afford the Veteran all due consideration, the Board finds that a clarifying medical opinion on the nature and etiology of the Veteran's hypertension is necessary in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.). In addition, the Board notes that it is unclear if the RO/AMC had an opportunity to review the March 2013 private treatment record in the first instance. As such, the additional evidence must be referred to the RO/AMC for review and preparation of an SSOC, if a grant of the benefit sought is not made. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims file to the March 2013 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's hypertension. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file. He or she is asked to specifically consider the March 2013 private treatment record (Dr. F.A.) suggesting a link between the Veteran's complaints of dyspnea and increased hypertensive symptomatology, as well as the Veteran's reports of dyspnea as documented in the record. See, e.g., November 2003 and August 2004 private treatment reports; September 2011 VA clarifying opinion; January 2012 VA treatment record (Virtual VA). Specifically, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or permanently aggravated by his service-connected asbestosis. In rendering this opinion, the examiner is asked to clarify whether the pulmonary findings related to asbestosis could have resulted in any additional difficulties with the Veteran's hypertension. If the examiner is unable to distinguish between symptoms associated with the service-connected asbestosis and any symptoms associated with a nonservice-connected disorder, to include COPD, the examiner should so state in the report. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology, such as shortness of breath. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence, to include the March 2013 private treatment record from Dr. F.A. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JESSICA J. WILLS 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).