Citation Nr: 1332809 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-36 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for polysubstance abuse as secondary to service connected thoracic scoliosis and/or cervical spine degenerative disc disease. 2. Entitlement to service connection for hypertension, to include as due to back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to October 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a March 2005 rating decision, the RO, in pertinent part, denied service connection for hypertension. In a September 2010 rating decision, the RO, in pertinent part, denied service connection for drug addiction and alcoholism. This matter has since been transferred to the jurisdiction of the RO in Muskogee, Oklahoma. The Veteran testified before a Decision Review Officer (DRO) at a November 2006 hearing; however, he indicated that he did not wish to provide testimony regarding the hypertension claim. The polysubstance abuse claim had not been made at that time. The Veteran also testified before an Acting Veterans Law Judge at a June 2011 RO (Travel Board) hearing. A hearing transcript has been associated with the claims file. In August 2013, the Board informed the Veteran that the Acting Veterans Law Judge who conducted the June 2011 hearing was no longer employed by the Board and advised him that he was entitled to another hearing. The Veteran did not respond to that letter. As such, the Board will adjudicate his claim based on the current record. The claim for service connection for hypertension was previously before the Board in September 2008, September 2011 and November 2013 and was remanded for additional development each time. Similarly, the claim for service connection for polysubstance abuse was previously before the Board in September 2011 and November 2013. The Board also repeatedly remanded that claim for additional development. The Board also 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 that file reveals that those records are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. After the issuance of the statement of the case in May 2013, VA received a lay statement from the Veteran in September 2013, without a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2013). However, the lay statement was not relevant to the present claim. As such, that evidence need not be considered by the AOJ prior to this appellate review. The issue of entitlement to individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Unfortunately, as will be explained herein, the VA medical opinions of record are inadequate in addressing the hypertension and polysubstance abuse claims. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In regards to the claim for service connection for hypertension, the Veteran has advanced several theories of entitlement. He contends that he developed hypertension in service. His representative, in the July 2013 appellant's post-remand brief, contends the Veteran had pre-hypertensive blood pressure readings during service and that such evidence is supportive of finding that hypertension developed in service. Alternatively, the Veteran has contended that hypertension developed due to or was aggravated by his service-connected scoliosis. The Board also notes that over the course of the appeal, the Veteran's claim was broadened to include a claim of service connection for polysubstance abuse as secondary to the service-connected cervical spine disability. The Veteran underwent hypertension VA examinations in June 2006 and November 2011. The November 2011 VA examiner also provided an addendum medical opinion in January 2013. In the January 2013 VA addendum opinion (to the November 2011 VA examination), the VA examiner misstated some of the blood pressure readings documented in the claims file. Given this mischaracterization of the evidence, another addendum medical opinion should be obtained to ensure that the medical evidence is properly reviewed and determine whether the review would alter the examiner's medical conclusion. Additionally, as previously noted, over the course of the appeal the Veteran's claim has been broadened to include a claim of service connection for polysubstance abuse secondary to the service-connected cervical spine disability (in addition to the service-connected scoliosis). Although the November 2011 VA examination report addressed the question of whether the Veteran's service-connected scoliosis caused or aggravated his hypertension, it did not address the question of whether hypertension was caused or aggravated by the service-connected cervical spine disability (as the Veteran was not service-connected for the cervical spine disability at that time). As such, the VA addendum opinion should also clarify that matter. In regards to the claim for service connection for polysubstance abuse as secondary to service connected thoracic scoliosis and/or cervical spine degenerative disc disease, in January 2013, the Board previously remanded this claim. At that time, the Board noted that the November 2011 VA examiner cited to several VA medical records, including a September 2004 psychosocial history and mental health assessment. As that September 2004 record was not associated with the claims file, the Board remanded this claim to obtain those records. Following the January 2013 Board remand, the AOJ created a February 2013 memorandum and also discussed its attempt to obtain records in the May 2013 supplemental statement of the case. The AOJ essentially concluded that September 2004 records did not exist. The Board notes that these documents are inconsistent and unclear in indicating whether the November 2011 VA examiner actually reviewed a September 2004 VA medical record, as she indicated in the VA examination report. For the sake of clarity, the AOJ should have the November 2011 VA examiner specifically state whether or not she reviewed the referenced September 2004 VA medical record. If the VA examiner did review such a document, she should state so, and if possible provide a copy of that record. If the VA examiner did not review such a record, have her clarify whether or not the lack of such a record would alter his medical opinion. Furthermore, the Board finds that the November 2011 VA examiner's medical opinion is unclear. The VA examiner should provide a new medical opinion addressing the Veteran's claim that his polysubstance abuse was caused or aggravated by his service-connected thoracic scoliosis and/or cervical spine degenerative disc disease. If the examiner finds that it was aggravated by a service-connected disability, he should also indicate the extent it was aggravated by the disability. If the November 2011 VA examiner is not available, a new VA medical opinion should be obtained. The Board notes that although the AOJ has already associated more recent VA medical records with the Virtual VA claims file, the Veteran receives continuing treatment from the North Texas VA Healthcare System. The most recent records contained in the claims file (Virtual VA) are dated in September 2013. Therefore, any VA treatment records dated from September 2013 to the present should be obtained on remand. Accordingly, the case is REMANDED for the following actions: (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. The AOJ should obtain VA treatment records from the North Texas VA Healthcare System dated from September 2013 to the present. All reasonable attempts should be made to obtain such 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). 2. Return the claims file to the November 2011 hypertension VA examiner. The claims file and a full copy of this REMAND must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the November 2011 VA examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. If the November 2011 VA examiner is available, that VA examiner should specifically indicate whether or not she reviewed the September 2004 VA medical record she referenced in the examiner report. (a) If the November 2011 VA examiner did review such a document, she should state so, and if possible provide a copy of that record. (b) If the November 2011 VA examiner did not review the September 2004 record referenced in the VA examination report, she should clarify whether or not the lack of such a record would alter her medical opinion. Following a review of the paper and Virtual claims files, which includes VA treatment records, the VA medical opinion provider (either the November 2011 VA examiner or the new VA examiner) should offer an opinion on the following: a) Does the Veteran currently have hypertension? b) Is it at least as likely as not that the Veteran's hypertension developed during the Veteran's period of active duty service from April 1985 to October 1988? In making this assessment, the examiner is asked to specifically comment on the Veteran's contentions that (i) his blood pressure was found to be elevated during service and (ii) he had at least pre-hypertension in service and that such a finding is relevant to a finding of hypertension. c) Is it at least as likely as not that the any currently diagnosed hypertension developed, to a compensable degree, within one year following his discharge from service (i.e., October 1988)? d) Is it at least as likely as not that the Veteran's service-connected thoracic scoliosis and/or cervical spine degenerative disc disease caused or aggravated any hypertension? The examiner should specifically comment on the September 2006 internet article submitted by the Veteran in support of this contention. If the examiner finds that any hypertension was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is asked to explain the reason(s) for his/her answers to the questions posed above. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 3. Return the claims file to the November 2011 VA mental disorders examiner. The claims file and a full copy of this REMAND must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the November 2011 VA examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the paper and Virtual claims files, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: a) Does the Veteran have a current diagnosis of polysubstance abuse? b) Is it at least as likely as not that the Veteran's service-connected thoracic scoliosis and/or cervical spine degenerative disc disease caused or aggravated polysubstance abuse? If the examiner finds that any polysubstance abuse was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is asked to explain the reason(s) for his/her answers to the questions posed above. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 4. 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 (including any pertinent evidence associated with the claims file since the last supplemental statement of the case). If the claim(s) remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ 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).