Citation Nr: 1334066 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-29 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to sleep apnea. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for hypertension. 3. Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis and spondylolisthesis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with a period of active duty for training (ACDUTRA) from July 1966 to November 1966 and active service from April 7, 1968 to April 11, 1968 and July 1969 to February 1971 with other periods of unverified service in the Illinois Army National Guard. This case comes before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (the RO). The Veteran testified at a VA hearing which was chaired by the undersigned Veterans Law Judge at the at VA's Central Office in Washington, DC in July 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. The issues of entitlement to service connection for hypertension and compensation pursuant to 38 U.S.C.A. § 1151 were previously remanded in February 2011 for additional 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 The Veteran asserts that he has hypertension incurred in active service or caused or aggravated by his service connected sleep apnea. Service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A February 2002 VA progress note indicated the Veteran seemed to have some "white coat syndrome" and that he needed to continue home blood pressure monitoring. A diagnosis of hypertension was made in January 2006 and the Veteran was prescribed medication based on blood pressure readings dated from November 2005 to January 2006. The Veteran underwent surgery for his back in February 2006. The Veteran was afforded a VA examination addressing his claim for service connection for hypertension in March 2006. The examiner found the Veteran's hypertension was not caused or incurred during active service. However, the examination report did not address the question of whether hypertension may be related to sleep apnea. The Board remanded the claim for an additional opinion in February 2011. The Veteran underwent another VA examination in March 2011. The Veteran reported he was told he had elevated blood pressure in 2006. Sometimes his blood pressure goes up and sometimes it is normal. He took medication for about one and a half years, but he was not on any kind of blood pressure medication at the time of examination. He stated his blood pressure was checked a week ago and was normal. That examiner found the Veteran did not have a current diagnosis of hypertension and did not give an opinion as to direct or secondary service connection. Inasmuch as the Veteran alleges current disability, the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Under the circumstances, the Board finds that the Veteran should be afforded an additional VA examination to obtain a medical opinion as to the likelihood of whether there is the Veteran currently has, or has had at anytime during the course of the appeal, hypertension that is caused or aggravated by to service-connected sleep apnea. The Veteran is also claiming compensation pursuant to 38 U.S.C.A. § 1151 for hypertension. However, as noted above, there is question as to whether the Veteran has a current diagnosis of hypertension, and the issue of entitlement to service connection for hypertension is being remanded for an additional VA examination. Thus, the RO's determination on the claim for service connection for hypertension could impact upon the claim for compensation pursuant to 38 U.S.C.A. § 1151 for hypertension; as such, the claim for compensation pursuant to 38 U.S.C.A. § 1151 for hypertension is inextricably intertwined with the claim being developed. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, appellate consideration of the claim for compensation pursuant to 38 U.S.C.A. § 1151 for hypertension would be premature at this juncture and as such, holding this matter in abeyance is warranted. Regarding the claim for entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis and spondylolisthesis of the lumbar spine, a rating decision of January 2012 granted service connection for a degenerative arthritis and spondylolisthesis of the lumbar spine and assigned an initial 20 percent disability rating. In February 2012, the Veteran filed a Notice of Disagreement (NOD) regarding the initial disability rating assigned. A Statement of the Case (SOC) has not been issued. Under these circumstances, a statement of the case must be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue a SOC as to the issue of entitlement to entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis and spondylolisthesis of the lumbar spine. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 38 C.F.R. § 20.302(b) (2012). 2. The RO/AMC should schedule the Veteran for an appropriate VA examination for the purpose of obtaining medical nexus opinion regarding his claimed hypertension. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. After examining the Veteran and the complete VA claims file, the examiner should be asked to provide an opinion as to the following: a) Does the Veteran have a current diagnosis of chronic hypertension or has he had such disability at any time since November 2005? b) If the answer to (a) is yes, is chronic hypertension at least as likely as not caused or aggravated by his service connected sleep apnea? c) If the answer to (a) is no, how does the current finding of no diagnosis reconcile with the January 2006 VA diagnosis of hypertension? In providing the requested opinions, the examiner should be advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain 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. 3. After completion of the above development, and any other development deemed necessary based upon the results of the foregoing development, the Veteran's claims of entitlement to service connection for hypertension and entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for hypertension should be readjudicated. If any determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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).