Citation Nr: 1333540 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-22 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension. In February 2010, the Veteran testified at a personal hearing held before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. During the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304(c) (2013). This case was previously before the Board in November 2010 at which it was remanded for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated through at least December 2012 which were not considered by the RO in the most recent December 2011 supplemental statement of the case. 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 Veteran contends that service connection is warranted for hypertension, as it is causally related to in-service occurrences of chest pains and headaches. Service treatment records reflect complaints of chest pain in a May 1968 Report of Medical History and a July 1970 treatment note. Furthermore, in the Veteran's November 1970 Report of Medical Examination at separation, his blood pressure was 130 over 60 millimeters mercury (mm Hg). Under the pertinent regulations, hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension means that the systolic blood is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Blood pressure readings are considered to be elevated above normal, but not to the level considered as hypertension, with systolic pressure from 120mm. to 139mm. or diastolic pressure from 80mm. to 89mm. Post service VA outpatient treatment records report borderline blood pressure in September 2007 and a diagnosis of hypertension in October 2008. In January 2009, the Veteran was prescribed medication for his hypertension, and the dosage was subsequently increased in October 2009 and January 2010. As such, in its November 2010 remand instructions, the Board directed the Appeals Management Center (AMC) to schedule the Veteran for an appropriate VA examination, to include all appropriate testing, to determine whether there was a causal nexus between his active military service and his hypertension. However, rather than provide the Veteran with a VA examination, as explicitly requested by the November 2010 remand instructions, the AMC merely obtained an opinion based on review of the Veteran's claims file in December 2010. Moreover, the VA opinion concluded that it was "less likely than not" that the Veteran's hypertension was etiologically related to his military service. The opinion was based entirely on the fact that there was "no evidence of hypertension or elevated blood pressure readings recorded while in military service, nor within one year of military service." Elsewhere in the opinion, it was noted that "all recorded blood pressures are within the normal range" within his service treatment records, and that "blood pressure was noted to be normal on the separation examination in November of 1970." However, as discussed above, the blood pressure reading of 130/60 mm Hg reflected in the Veteran's November 1970 Report of Medical Examination at separation was, by definition, an elevated blood pressure reading. As the December 2010 VA opinion was based on an inaccurate factual premise, the Veteran should be provided with a new examination. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Moreover, in obtaining a VA opinion which did not include an examination of the Veteran, the Board finds that the AMC did not substantially comply with the Board's November 2010 remand directives, which explicitly instructed the AMC to schedule the Veteran for a VA examination, to include all appropriate testing. Consequently, the Board finds that a remand is required in order for the AMC to undertake corrective actions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine whether there is a causal nexus between his active military service and his hypertension. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, and all pertinent disabilities associated with the Veteran's heart found to be present should be diagnosed. The appropriate examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's hypertension had its origin in service or is in any way related to the Veteran's active service. A rationale for any opinion reached must be provided, and the examiner is asked to explicitly comment upon the significance, if any, of the reported chest pain in May 1968 and July 1970, as well as the elevated 130/60 mm Hg blood pressure reading obtained upon the Veteran's separation from service in November 1970. If the examiner concludes that an opinion cannot be offered without engaging in speculation, then he/she should indicate this and explain the reason why an opinion would be speculative. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The appellant 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. 2013). _________________________________________________ APRIL MADDOX Acting 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) (2013).