Citation Nr: 1627403 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 11-26 331A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from July 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran when further action is required. REMAND A. Hypertension The claim of service connection for hypertension must be remanded to (a) obtain private medical records and (b) obtain a VA opinion. With regard to the medical records, the Veteran reported to his VA treatment provider in April 2010 that he was treated by a private (non-VA) medical doctor for his hypertension. Because those records are potentially relevant, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. With regard to the need for a VA opinion, the evidence shows that the Veteran has hypertension. It is also undisputed that he served in the Republic of Vietnam during the Vietnam era. However, an opinion has not yet been provided as to the possibility of a relationship between the Veteran's hypertension and his presumed exposure to herbicide agents such as Agent Orange. Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the National Academy of Sciences Institute of Medicine has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Thus, a remand for a medical opinion is warranted for the hypertension claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). B. Hearing Loss The claim for an increased initial rating for hearing loss must be remanded to obtain missing VA medical records. Specifically, the Veteran reported on an August 2011 authorization for records that he had treatment at VA for this condition on an ongoing basis, every few months, from 2010 through 2011. The September 2011 statement of the case (SOC) lists VA medical records through August 2011 as being in the claims file. However, the claims file only contains VA medical records through December 2010. Because the records during 2011 were sufficiently identified by the Veteran, they must be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The Board also finds that a new VA examination is needed to evaluate the ongoing severity of the condition. See 38 C.F.R. §§ 3.326, 3.327 (2015); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims, to specifically include treatment with his private doctor for hypertension. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Attempt to obtain all identified records not previously obtained. All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile). Associate all obtained private records with the claims folder. If the Veteran does not provide any necessary release, request that he obtain the records and provide them to VA. 3. Obtain all of the Veteran's VA treatment records not already associated with the claims file, to specifically include those beginning from 2011. 4. All attempts to fulfill the preliminary development specified in paragraphs 1-3 above must be documented in the claims file, and the Veteran must be notified of the results of any unsuccessful efforts. The Veteran must be also notified that he is always allowed to provide such records himself, notwithstanding VA's inability to obtain the records. 5. Next, forward the claims file to a physician in connection with the hypertension claim. The physician should review the evidence in the claims file. The physician should then provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset during, or is otherwise related to, his active service. The opinion should include consideration of the Veteran's presumed exposure to certain herbicide agents, such as Agent Orange, as the National Academy of Sciences Institute of Medicine has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. The physician should provide a complete rationale or explanation for all opinions reached. 6. After completing all development set forth in paragraphs 1-4 above, arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected hearing loss condition. Accordingly, the examiner is asked to review all relevant records. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's hearing loss condition. The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. In doing so, please describe all functional limitations present, including in his daily life. The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. A report of the examination should be prepared and associated with the Veteran's VA claims file. 7. After completing all actions set forth in paragraphs 1-6, plus any further action needed as a consequence of the development completed in paragraphs 1-6 above, readjudicate the appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).