Citation Nr: 1511396	
Decision Date: 03/18/15    Archive Date: 03/27/15

DOCKET NO.  10-27 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service for throat cancer.

2.  Entitlement to service connection for a psychiatric disability.

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from April 1970 to December 1971.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO).

Since the last adjudication by the RO (April 2010 statement of the case (SOC)), record of the Veteran's treatment for psychiatric disability have been added to the record without a waiver of Agency of Original Jurisdiction (AOJ) initial consideration.  As the issue of service connection for psychiatric disability is being remanded (for other reasons), the AOJ will have opportunity to conduct a merits initial review of those records.   

The issue of service connection for lesions/ulcerations in the mouth and throat has been raised by the record in a June 2011 statement (alleging "continued treatment" for such condition since service) but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).

The issues of service connection for throat cancer and psychiatric disability are being REMANDED to the AOJ.  VA will notify the appellant if further action on his part is required.


FINDING OF FACT

Hypertension was not manifested in service, or in the first postservice year, and is not shown to be etiologically related to the Veteran's military service.





CONCLUSION OF LAW

Service connection for hypertension is not warranted.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met.  By correspondence dated in June 2009, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing and what evidence VA would attempt to obtain, as well as how VA assigns disability ratings and effective dates of awards.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate.

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  With respect to the claim of service connection for hypertension, as discussed below, there is no indication (or assertion) in the record that such disability was manifested during (or in the first year following) his active service, nor is there any competent (medical) evidence suggesting a link between such disability and any incident during service.  Consequently, a VA medical opinion to address the possibility of such etiology is not necessary.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require an examination).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.




Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic diseases (including hypertension), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for cardiovascular disease).  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record.  See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim.

The Veteran's STRs do not show any complaints, treatment, or diagnoses related to hypertension.  His blood pressure on January 1970 pre-induction examination was 128/78.  In an August 1970 dental record he denied that he had ever been treated for high blood pressure or any heart trouble.  On December 1971 examination for separation from service his blood pressure was 110/60, and his heart was clinically evaluated as normal.  In the accompanying report of medical history, he denied any pain or pressure in chest, palpitation or pounding heard, heart trouble, or high or low blood pressure.  VA treatment records show that the Veteran's hypertension was diagnosed in 2004 (more than 30 years after separation from service) and that he continues to receive treatment for hypertension. 

The Veteran does not allege that hypertension was manifested in service or in the first postservice year.  He has not asserted any theory of entitlement to service connection for hypertension, nor is any suggested by the medical evidence of record.  His claim of service connection only identified "HTN" and did not propose a theory of entitlement.  His notice of disagreement expressed dissatisfaction with the denial of service connection, but did not state why the decision was believed to be incorrect (other than to note that he has a documented current diagnosis).  He did not specifically address hypertension in his substantive appeal.

As the evidence does not show (nor has the Veteran alleged) that hypertension was manifested or incurred during his active duty service, and hypertension is not otherwise shown to be related to his active service, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in this matter must be denied.


ORDER

Service connection for hypertension is denied.

REMAND

The Veteran's theory of entitlement to service connection for throat cancer is based on an allegation that mouth and throat lesions treated during service continued after service and developed into throat cancer.  His STRs document treatment for mouth/throat lesions during service, and postservice treatment records document continued complaints/treatment following service.  There is no medical nexus opinion of record that addresses the Veteran's claimed theory of entitlement.  The Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met for this issue, and development for such an examination is warranted.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  [The Board notes that an inferred claim of service connection for mouth/throat lesions, which the Veteran asserts have continued to the present, has been referred to the AOJ, above.]

Regarding service connection for psychiatric disability, the Veteran has asserted that such disability is secondary to his throat cancer.  The June 2009 VCAA notice letter did not contain notice on what was needed to substantiate a claim seeking secondary service connection.  Accordingly, such notice is needed on remand.  Notably also, the secondary service connection for psychiatric disability claim is inextricably intertwined with the service connection for throat cancer claim; as the latter claim is being remanded, consideration of the secondary service connection for psychiatric disability claim must be deferred at this time.  Additionally, evidence added to the record since the last adjudication indicates that the Veteran receives on-going VA psychiatric treatment.  Contemporaneous records of such treatment may contain information pertinent to the Veteran's claim and must sought; notably, VA records are constructively of record. 

Accordingly, the case is REMANDED for the following:

1.  The AOJ must provide the Veteran with appropriate notice under the VCAA with respect to his claim of secondary service connection for a psychiatric disability.  He should have opportunity to respond.  He should also be notified that a claim of service connection for mouth/throat lesions is not before the Board at this time, and will not be in appellate status until/unless he files a notice of disagreement with a negative decision.

2.  The AOJ should ask the Veteran to identify the provider(s) of any (and all) treatment or evaluation he has received for psychiatric disability.  He should also be asked to provide the releases necessary for VA to secure any private records of such treatment and evaluations.  The AOJ should secure for the record copies of the complete clinical records of all evaluations and treatment from the providers identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received.

3.  The AOJ should then arrange for the Veteran to be examined by an appropriate physician to determine the likely etiology of his throat cancer.  The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination.  Any indicated tests or studies should be completed.  Based on examination of the Veteran and review of his record, the examiner should provide an opinion that responds to the following:

Please identify the likely etiology for the Veteran's throat cancer.  Specifically, is it at least as likely as not (a 50% or greater probability) that such disability began in (or is otherwise related to) the Veteran's military service, to include the mouth/throat lesions documented therein?

The examiner must explain the rationale for the opinion.

4.  The AOJ should then review the record and readjudicate the remaining claims.  If service connection for throat cancer is granted, the AOJ should arrange for any further development indicated with respect to the claim of secondary service connection for a psychiatric disability (to include a nexus examination), and readjudicate that service connection for psychiatric disability claim.  If either claim remains denied, the AOJ should issue an appropriate SOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs