Citation Nr: 1337851 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-10 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include asthma. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to May 2002 and from July 2003 to August 2005. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board remanded this case for further 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 When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The February 2012 remand instructions asked that the Veteran be afforded a VA examination for each of his claimed disabilities. With regard to the respiratory disability claim, the examiner was asked to opine (1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's respiratory disability (if any) began during or is causally related to service; (2) whether there was clear and unmistakable evidence that Veteran's disability preexisted service; and (3) whether there was clear and unmistakable evidence that Veteran's disability was not aggravated by service. In response, the March 2012 examiner found (1) it was less likely as not that the Veteran's respiratory disability began during or was causally related to his service; (2) there was not clear and unmistakable evidence that Veteran's disability preexisted service; and (3) there was no clear evidence that Veteran's disability was aggravated by service. The rationale for this opinion was that a review of the c-file did not show any documentation of asthma. This examination also noted that the respiratory examination results were normal despite the Veteran's history of asthma. It is unclear whether this examiner is saying that the Veteran does not have a current respiratory disability. Additionally, the third finding of the examiner does not directly address the question posed (whether there was clear and unmistakable evidence that Veteran's disability was not aggravated by service) in that it seemingly answers the opposite question of whether there was clear and unmistakable evidence that Veteran's disability was aggravated by service, which improperly places the burden of proof for this on the Veteran. As such, additional clarification of these finding is needed. Any finding that the Veteran does not have a current respiratory disability, should address whether the Veteran has had a current diagnosis of asthma or any other respiratory disability during the pendency of this appeal, including at the time of his October 2005 VA outpatient treatment, which noted that he was using a prescription inhaler. See McLain v. Nicholson, 21 Vet. App. 319 (2007)(finding that the current disability requirement can be established by showing that the Veteran had the claimed disability either at the time a claim for VA disability compensation was filed or at some time during the pendency of that claim). Additionally, with regard to the hypertension claim, the February 2012 remand instructions asked that the examiner opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension (if any) either (1) began during or is causally related to service; or (2) was caused, or aggravated by his service connected posttraumatic stress disorder (PTSD). The March 2012 examiner answered both in the negative with a single rationale: "There was no documentation of hypertension while on active duty." The examiner failed to address the in-service blood pressure readings showing a diastolic blood pressure of 90mm. or more in January, March, and April 2005. See 38 C.F.R. § 4.104, Diagnostic Code 7101, note 1 (defining "hypertension" as diastolic blood pressure that is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.). A December 2012 addendum opinion was obtained by another health care provider to address the inadequacy of this rationale with regard to the secondary service connection claim. This addendum opinion likewise found that it was less likely as not that the Veteran's hypertension was incurred in or caused by the Veteran's active duty service. The rationale provided included a list of known causes of hypertension, including a notation that secondary hypertension was less common than primary or essential hypertension, followed by the conclusion "Therefore, the Veteran's PTSD did not cause or aggravate his hypertension." The analytical link between the listed known causes and that conclusion is not readily apparent. Indeed, while noting that secondary hypertension is less common, it does show that secondary hypertension is possible and there is no explanation of why it is not 50 percent or more probable in this veteran's case. No opinion was provided in the secondary service connection section of this examination. Again, additional clarification of these finding is needed. Finally, the Board notes that the Social Security Administration (SSA) has requested VA records in conjunction with the Veteran's SSA disability claim. The nature of that SSA claim is unclear. To the extent that this SSA claim may address the same disabilities for which the Veteran is seeking VA compensation, they may contain pertinent information. VA's duty to assist requires that potentially relevant SSA records be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Therefore, reasonable efforts to obtain these records must be made prior to any further adjudication. See Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002); see also 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's SSA records, including all medical records that formed the basis of any decision by SSA. Efforts to obtain these records should be documented, and evidence received in response to this request should be associated with the claims folder. If the records are not available, a notation to that effect should be made in the claims folder and communicated to the Veteran. He should be given opportunity to submit the records. 2. Forward this claims folder to the examiner who performed the March 2012 VA examination for the purpose of obtaining an addendum opinion with regard to the respiratory disability claim. If he is unavailable, another qualified healthcare professional may review the record and provide the necessary opinions. If necessary, schedule the Veteran for another VA examination. This examiner should address the following questions: a. Does the Veteran have a current (meaning present at any time since August 2005) respiratory disability, to include asthma? If not, the examiner is asked to comment on the October 2005 record showing use of a prescription inhaler. b. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's respiratory disability (if any) began during or is causally related to service? c. Is there clear and unmistakable evidence that Veteran's disability preexisted service? d. Is there clear and unmistakable evidence that Veteran's disability was not aggravated by service? All opinions should be accompanied by clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 3. Forward this claims folder to the examiner who performed the March 2012 VA examination, the examiner who provided the December 2012 addendum opinion, or another qualified healthcare professional for the purpose of obtaining an addendum opinion with regard to the hypertension claim. If necessary, schedule the Veteran for another VA examination. After a review of the record, this examiner should address the following questions: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension began during or is causally related to service, to include the high diastolic blood pressure reading in January, March, and April 2005? b. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his service connected PTSD? All opinions should be accompanied by clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 4. After the above-requested development is completed, re-adjudicate the claim on appeal. If the benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case, with an appropriate period for response before the case is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).