Citation Nr: 1333683 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 04-36 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic cardiac disorder, to include hypertension. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) for compensation purposes. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which found that new and material evidence had not been submitted to reopen the chronic cardiac disorder claim. In a December 2010 decision, the Board reopened the claim of entitlement to service connection for a chronic cardiac disorder and remanded the claim for additional development. A claim for entitlement to TDIU was also remanded by the Board at that time. Both claims were again remanded by the Board in September 2012 and July 2013. The appeal now returns to the Board for appellate review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for a chronic cardiac disorder, to include hypertension. Service connection is in effect for cardiomegaly and bradycardia/bradyarrythmia, which was granted in an August 2013 rating decision, effective May 20, 2002. However, the etiology of the Veteran's hypertension is still at issue. In the December 2010 remand instructions, the Board directed the RO to arrange for the Veteran to undergo an appropriate VA examination to determine the nature and etiology of any current chronic cardiac disorder. Specifically, the VA examiner was asked to express an opinion as to whether it was at least as likely as not (50 percent probability or more) that any such disability was incurred or aggravated as a result of the Veteran's military service or as a result of a service-connected disability, to include posttraumatic stress disorder (PTSD). (Emphasis added). Any opinion expressed was directed to be accompanied by a complete rationale. Pursuant to the Board's December 2010 remand instructions, the Veteran was afforded a VA heart examination in January 2011, at which time he was diagnosed as having essential hypertension and hypertensive heart disease. The examiner opined that the Veteran's hypertension was "less likely as not a result of his military service" because he was diagnosed with hypertension after he left the military. The examiner further opined that the Veteran's hypertensive heart disease was "less likely as not a result of his military service," and rather that it was "most likely a result of his history of hypertension, which was diagnosed after he left the military." Finally, the examiner opined that t.he Veteran's hypertension and hypertensive heart disease were "less likely as not a result of his PTSD." With respect to a previous physician's opinion that the Veteran's heart disease was as likely as not service related, the January 2011 VA examiner indicated that he could not comment on it without resorting to speculation. As the examiner did not address the question of aggravation by the Veteran's service-connected PTSD, the appeal was remanded for another examination in September 2012. At an October 2012 VA examination, the examiner stated that he could not offer an opinion as to whether the Veteran's hypertension was aggravated by his PTSD without resorting to speculation. At the most recent VA examination in January 2013, the examiner merely stated that the Veteran's hypertension "is less likely as not effected [sic] by his PTSD." The examiner offered no rationale for this opinion, except to indicate that other factors, such as obesity and diet, likely affected the Veteran's hypertension. Both the December 2010 and September 2012 remands clearly state that a complete rationale for the opinion must be provided. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the January 2013 VA examiner did not provide a rationale for the opinion, the Board determines that the examination report did not comply with the Board's remand orders and is not adequate. Moreover, both the January 2011 and January 2013 examiners stated that the review of VA treatment notes included a June 1998 VA audiological examination report that showed a negative history for hypertension. This examination report is not in the file. Further, treatment notes printed in July 2002 show past VA Medical Center clinic visits back to March 1998. The earliest VA treatment note of record is dated in September 2001. The record reflects that the Veteran was being seen at the Tampa VA Medical Center (VAMC) at that time. Thus, all VA treatment records from the Tampa VAMC dated prior to September 2001 should be added to the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Further, the Board observes that the Veteran had multiple blood pressure readings below 120/80 and several elevated blood pressure readings, up to 144/ 92, during service. At a December 1992 VA examination report, he had three blood pressure readings taken, and two showed a diastolic pressure of 80. However, while there was no diagnosis of hypertension in service or within one year of service, the Board determines that the Veteran's blood pressure readings in service are suggestive of labile hypertension or pre-hypertension that may have represented the onset of the Veteran's hypertension. The January 2013 VA examiner noted a few of the elevated in-service blood pressure readings, but made no comment as to their significance. Therefore, the Board determines that another VA opinion should be obtained once any outstanding treatment notes are associated with the claims file. Since a favorable decision on the issue concerning service connection for a chronic cardiac disorder would have an impact on the resolution of the claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer appellate consideration of the claim for entitlement to a TDIU. Further, the Board notes that the Veteran has not been afforded a VA examination to assess the effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. Therefore, such examination should also be accomplished. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all VA treatment records for the Veteran from the Tampa VAMC dated prior to September 2001. All requests and response, positive and negative, must be documented in the claims file. 2. Return the Veteran's claims file to the VA physician who authored the January 2013 VA heart examination report. If that physician is no longer employed with VA or is otherwise unavailable, then the Veteran's complete VA claims file should be forwarded to another appropriate VA physician who must provide the requested opinions. All pertinent symptomatology and findings must be reported in detail. Following a review of the claims file, including all in-service and post-service treatment records, the examiner must provide an opinion as to whether any cardiac disorders found, to include hypertension and hypertensive heart disease, are a result of his military service or caused or aggravated by any service-connected disability, to include PTSD. The term "aggravation" means a permanent increase in the severity of the underlying disability beyond its natural progression. A complete rationale for all opinions must be provided. In addressing whether there is a relationship to or onset during service, the examiner should specifically address the multiple elevated blood pressure readings in service and whether they were representative of the onset of hypertension or of some other cause. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Once the above opinion has been obtained, schedule the Veteran for the appropriate VA examination to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims folder must be provided to the examiner in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, considered in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. 4. The Veteran must be advised of the importance of reporting to any scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report to the examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. The RO must then readjudicate the claims and, thereafter, if any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ L. M. BARNARD 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) (2012).