Citation Nr: 1342296 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-08 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, also claimed secondary to service-connected cardiovascular disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2006 (hypertension) and March 2008 (TDIU) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned at a July 2009 Travel Board hearing and the transcript is of record. The case was previously before the Board in May 2010 and June 2012 when the issues were remanded for further development by the originating agency. The case has been returned to the Board for further appellate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran is currently service connected for cardiovascular disease, rated 60 percent disabling, and tinea cruris with dermatitis, rated 10 percent disabling. He has a combined disability rating of 60 percent. He claims he had problems with high blood pressure in service, and hypertension was treated shortly after service. Alternatively, he believes his current hypertension was caused or aggravated by his service-connected cardiovascular disease. He further contends his service-connected heart disease precludes him from being able to maintain gainful employment and, therefore, seeks TDIU. The claims folder currently contains voluminous medical records and examinations. Most recently, VA outpatient treatment records through March 2013 were obtained and made part of the record through an electronic file known as Virtual VA. These records indicate the Veteran was seen in November 2012 complaining of increased chest pains. With regard to follow-up tests, however, the Veteran indicated he had "a heart doctor on the outside" and would prefer to follow-up there. The Veteran further noted he sees his local doctor every three to four months. These referenced private treatment records are not currently in the claims folder. In light of the relevance, the RO or AMC must make efforts to obtain these records and any other potentially relevant medical evidence not currently of record. Hypertension Additionally, in regard to the hypertension claim on appeal here, the Board notes the Veteran has received multiple duty-to-assist letters from VA, but none of these letters specifically explains the evidence necessary to establish service connection claimed "secondary" to another service-connected disability. While this information was provided in the Statement of the Case (SOC) and Supplemental Statements of the Case (SSOCs), since a remand is necessary for other reasons, the RO or AMC must take this opportunity to send a corrective notice letter. TDIU Additionally, in regard to the TDIU claim on appeal here, the Board notes the Veteran was last afforded a VA examination relevant to this issue in June 2010, over three years ago. With regard to employability, the examiner limited the opinion to manifestations caused by the Veteran's service-connected cardiovascular disease. Although the Veteran's claim is mainly based on the manifestations of his cardiovascular disease, TDIU must be considered in light of the combined effect of all his service connected disabilities, to include his tinea cruris with dermatitis. Since the time of the June 2010 VA examination, moreover, and as noted above, the Veteran was treated privately and at the VA for increased chest pains. In light of the missing private treatment records, the possibility of a worsened service-connected disability, and the inadequate VA medical opinion, a new VA examination is warranted. The Board further notes that the TDIU issue on appeal is "inextricably intertwined" with the hypertension claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the hypertension claim must be fully developed and decided prior to determination of the TDIU claim on appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran corrective notice informing him specifically of the evidence necessary to substantiate a claim seeking service connection for hypertension, also claimed secondary to service-connected cardiovascular disease. 2. Ask the Veteran to identify and provide signed release forms for any private treatment received for his heart condition, hypertension, or service-connected skin condition; if release forms are provided, attempt to obtain any identified treatment records pertaining to the Veteran specifying that actual treatment records, as opposed to summaries are necessary. Also obtain recent VA outpatient treatment records from March 2013 to the present. All records obtained must be associated with the claims file. If any records are not obtained, it should be so stated in writing for inclusion in the claims folder. 3. After all records are obtained, to the extent available, schedule the Veteran for an appropriate VA examination to ascertain the current severity of his service-connected disabilities and whether the combined effects of all the Veteran's service-connected disabilities (cardiovascular disease, rated 60 percent disabling; tinea cruris with dermatitis, rated 10 percent disabling) preclude the Veteran's ability to obtain or maintain substantial gainful employment. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. 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 the Veteran's service-connected cardiovascular disability, tinea cruris with dermatitis, and any other disorder service-connected as a result of this appeal, render him unable to secure or follow a substantially gainful occupation 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. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 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. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After 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 matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002 & Supp. 2013). _________________________________________________ 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) (2013).