Citation Nr: 1419211 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 03-15 130A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a cardiovascular disorder other than hypertension, to include arteriosclerotic cardiovascular disease and congestive heart failure with angina/chest pain. (The issue of whether an overpayment of non-service-connected disability pension benefits in the amount of $1,374 was properly created is addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active military duty from August 1969 to September 1975, with subsequent Reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) and March 2007 and July 2011 Board remands. In July 2012, the Board issued a decision denying service connection for hypertension and cardiovascular disorder other than hypertension, to include arteriosclerotic cardiovascular disease and congestive heart failure with angina/chest pain. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and, in a December 2013 Memorandum Decision, the Court set aside the Board's decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the above-cited Memorandum Decision, the Court determined that the Board failed to provide adequate reasons and bases for giving probative value to a 2011 VA examination that was based on inaccurate facts. The Court noted that the VA examiner indicated review of the entire record and found the Veteran's hypertension was not related to service in part because the record showed only one isolated instance of in-service elevated blood pressure. Yet the Board had referred to three in-service elevated blood pressure readings. The Court essentially concluded that the Board should have explained this factual discrepancy, or otherwise addressed why it relied on the report, or sent the report back for clarification. Given the failure of the VA examiner to fully discuss the Veteran's entire medical history as documented in service treatment records the Board 2011 VA examination is inadequate. Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand this matter for an addendum to the prior medical opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should then be returned if possible to the VA physician who examined him in December 2011. If that doctor is not available, the claims file should be sent to another VA physician who will have an opportunity to review the complete file. The claims folder and accompanying treatment records should be provided to the examiner for review in conjunction with the addendum. After a comprehensive review of the claims file, the examiner should address the question of whether it is at least as likely as not. i.e., at least a 50 percent probability or greater, that the Veteran's hypertension had its onset in service or within one year of service discharge (September 1976) or is otherwise causally related to his period of active duty or a period of active duty training (ADT). In rendering an opinion, the examiner should discuss the significance of the Veteran's elevated blood pressure readings of 160/120 and 160/110 in May 1973 (as documented during his period of active duty) and the elevated reading of 140/100 in November 1977 (as documented on a reserve service examination) and address whether or not they are initial manifestations of his subsequently diagnosed hypertension. The examiner should also address the question of whether it is at least as likely as not. i.e., at least a 50 percent probability or greater, that the Veteran's cardiovascular disease, to include arteriosclerotic cardiovascular disease and congestive heart failure with angina/chest pain, had its onset in service or within one year of service discharge (September 1976) or is otherwise causally related to his period of active duty or a period of ADT. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The examiner must also consider the Veteran's lay testimony in addition to the documentary evidence of record. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues on appeal. If the benefits are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).