Citation Nr: 1609339 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 08-10 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected adjustment disorder with depressed mood. 2. Entitlement to service connection for a liver disability, to include fatty liver, to include as secondary to service-connected adjustment disorder with depressed mood. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge with respect to the issue of entitlement to service connection for hypertension. A transcript of that hearing is of record. The Veteran did not request a Board hearing with respect to his claim for entitlement to service connection for a liver disability. The Board denied entitlement to service connection for hypertension in a May 2014 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand in October 2015. In an October 2015 order, the Court granted the Joint Motion, vacating the portion of the Board's May 2014 decision which failed to address a theory of secondary service connection for hypertension, and remanded the matter for compliance with the Joint Motion. The portion of the Board's decision which denied hypertension on a direct basis was undisturbed. The Board notes that, while the Veteran's appeal was pending at the Court, the RO purportedly reopened and denied the Veteran's claim for entitlement to service connection for hypertension, to include as secondary to adjustment disorder with depressed mood, in an August 2014 rating decision, and the Veteran filed a Notice of Disagreement in April 2015. However, as the appeal was still pending at the Court, the August 2014 rating decision is moot and the matter is properly on appeal from the original December 2008 rating decision. The issue of entitlement to service connection for anxiety has been raised by the record in a September 2011 statement. Additionally, the Board finds that the issue of entitlement to service connection for alcohol dependence secondary to service-connected adjustment disorder with depressed mood has also been raised by the record. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Hypertension The Veteran asserts that his hypertension is caused or aggravated by his service-connected adjustment disorder with depressed mood. The Veteran underwent VA examination in connection with his claim in January 2012 and July 2014. The January 2012 examiner addressed only a theory of direct service connection, opining that the Veteran's hypertension was not caused by or a result of service. The July 2014 examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected adjustment disorder because the Veteran had never been told that his hypertension was causally related to his depressed mood. Upon review, the Board finds that the July 2014 examiner did not provide a sufficient rationale for the opinion stated. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). The opinion does not contain any medical rationale but, rather, is based solely on what the Veteran has previously been told by other clinicians. As such, there is no competent medical opinion of record with respect to the Veteran's claim of entitlement to service connection on a secondary basis. Accordingly, the Board finds remand is warranted for a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Furthermore, the January 2012 examiner noted that the Veteran had a history of alcohol abuse which could lead to elevated blood pressure. Accordingly, the Board finds the issue of entitlement to service connection for hypertension to be inextricably intertwined with the issue of entitlement to service connection for alcohol dependence referred above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). Liver Disability The Veteran asserts that his liver disability is as a result of his service-connected adjustment disorder with depressed mood. Specifically, he reports that his psychiatric conditions led him to abuse alcohol, which in turn resulted in liver disease. Additionally, a September 2010 VA examiner opined that the Veteran's liver disease was likely related to his long-standing alcohol abuse. Accordingly, the Board finds that the issue of entitlement to service connection for a liver disability is also inextricably intertwined with the issue of entitlement to service connection for alcohol dependence as secondary to service-connected adjustment disorder, as referred above. See Harris, 1 Vet. App. at 183. As such, a decision on the claim for service connection will be deferred pending adjudication of the referred claim and the development needed as discussed below. Furthermore, in its May 2014 remand the Board noted that a June 2011 Statement of the Case reflected that a private medical opinion dated October 2010 had been reviewed by the RO in connection with the Veteran's claim for entitlement to service connection for a liver disability. However, the opinion, from a Dr. W. Ballard, was not associated with the Veteran's claims file. As such, the Board ordered upon remand that the RO locate the opinion and associate it with the file. In January 2015, the RO mailed the Veteran a letter noting that he had previously indicated that he received treatment from Dr. Ballard and that the October 2010 private medical opinion, as well as any VA or non-VA medical records that were not associated with the file, were needed to support the Veteran's claim. The RO directed the Veteran to complete and return a release for outstanding records. When the Veteran did not return the completed release, the RO returned the claim to the Board. However, there is no indication in the record that the RO made any other attempts to obtain the missing October 2010 private opinion, despite the fact that it was previously of record. Accordingly, upon remand the RO should make further attempts to obtain the missing October 2010 opinion, including a search of its own records. If the opinion cannot be located, the Veteran and his representative should be sent a specialized notice explaining that while the October 2010 opinion was previously of record, it cannot be located and, as such, if the opinion is to be considered on appeal another copy must be obtained with the Veteran's assistance. Additionally, as it appears the Veteran receives continuous treatment through VA, the Board finds the RO should obtain any VA treatment records dated from March 2015 to the present. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from March 2015 to the present. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the claims file. 2. Conduct a search for the October 2010 private medical opinion from Dr. Ballard. If the opinion cannot be located, send the Veteran and his representative a specialized notice explaining that while the October 2010 opinion was previously of record, it cannot be located and, as such, if the opinion is to be considered on appeal another copy must be obtained with the Veteran's assistance. The Veteran should be given another opportunity to submit a release for records from Dr. Ballard and any other care providers identified by the Veteran. All actions to obtain such records should be fully documented in the claims file. The RO must make 2 attempts to obtain the private records identified, unless the first attempt demonstrates that any further attempt would be futile. If private records are identified but not obtained, the RO must notify the Veteran and his representative of (1) the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Adjudicate all pending claims, including the claims for entitlement to service connection for anxiety and entitlement to service connection for alcohol dependence secondary to service-connected adjustment disorder with depressed mood. 4. Then, schedule the Veteran for a VA examination to determine the current nature and etiology of hypertension. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records, and with consideration of the Veteran's lay statements, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current hypertension was caused or aggravated by the Veteran's service-connected adjustment disorder with depressed mood or any associated alcohol dependence. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 5. After all development has been completed, re-adjudicate the claims of entitlement to service connection for hypertension, to include as secondary to service-connected adjustment disorder with depressed mood, and entitlement to service connection for a liver disability, to include as secondary to service-connected adjustment disorder with depressed mood. If any benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).