Citation Nr: 1633368 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 10-18 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from October 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a hearing in his April 2010 substantive appeal and one was scheduled to take place in January 2015. However, a few days prior to the hearing, the Veteran's spouse informed the RO that he broke his hip and was unable to attend the hearing. She did not request that it be rescheduled. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2015). This case was remanded by the Board for further development in March 2015 and December 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Previously, the Board remanded the case in March 2015 and December 2015 to provide the Veteran with a VA examination and obtain a medical opinion as to whether the Veteran's hypertension was secondary to his service-connected disabilities, to include coronary artery disease (CAD) status post heart transplant, posttraumatic stress disorder (PTSD), diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, scars from cardiac surgery and bilateral cataracts. An opinion was also sought on direct-incurrence basis. The Veteran was provided a VA examination in July 2015. The report notes a diagnosis of hypertension in 1995. The Veteran reported that he had been taking medications for blood pressure almost 10 years prior to coronary artery bypass graft (CABG) in 1999; blood pressure had been controlled since. The examiner noted that the Veteran had history of status post CABG in 1999, diabetes in 2006, PTSD in 2004, status post cerebrovascular accident (CVA) in 2014, and status post heart transplant in 2009. The examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition because the Veteran's hypertension had been well controlled and in addition, hypertension was diagnosed many years prior to onset of service-connected CAD, diabetes, PTSD, and cardiac transplant. In a March 2016 addendum, the examiner opined that the Veteran's hypertension was not aggravated by service-connected disabilities. In support of this opinion, the examiner stated that per history and review of blood pressure readings and medication, the Veteran's hypertension had been well controlled since starting blood pressure medications around 1990. It was also noted that his diabetes was diagnosed in 2006, PTSD in 2004, peripheral neuropathy after 2006, cardiac surgery in 1999, heart transplant in 2009, and cataracts in 2014. Regarding direct-incurrence theory, the examiner opined that the Veteran's hypertension did not begin during active service, was not related to an incident in service, and did not begin within one year after discharge from active service because the Veteran was diagnosed with hypertension approximately in 1990, which was 25 years after active duty service. The Board finds that these opinions are not adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). Specifically, the Board observes that these medical opinions are inconsistent with the other medical evidence of record but the examiner did not provide sufficient explanation for such inconsistency. In this regard, although the March 2016 VA examiner stated the Veteran's hypertension was diagnosed approximately in 1990, an April 2005 VA heart examination report reflects that the Veteran reported a history of hypertension diagnosed around 1976. Further, although the March 2016 VA examiner notes the Veteran's hypertension has been well controlled since starting blood pressure medications around 1990, an August 2007 VA heart disease examiner stated that the Veteran had poorly controlled hypertension for decades. (This examiner explained that it is common knowledge that poorly controlled hypertension cause microvascular damage and this results in trauma to the vessels which leads to the buildup of plaque; this build up results in arteriosclerosis and coronary artery disease. It was also noted that the Veteran has sleep apnea which is known to cause hypertension and heart disease.) In addition, a November 2006 VA examination report stated that the Veteran's diabetes affected the kidneys resulting in fluid retention and the kidney problem has resulted in complications of high blood pressure, which was treated with HCTZ. The examiner noted that the Veteran had a non-diabetic condition of hypertension that was aggravated by the diabetes based on the Veteran's report that increased medication was required since diabetes diagnosis. However, the examiner stated that the degree of the disability due to the aggravation compared to the degree of previous disability can only be determined by speculation. The August 2007 VA examiner also noted the Veteran's hypertension can be aggravated by diabetes but the degree of aggravation is subjective. Based on the foregoing, the Board finds that the medical evidence of record is ambiguous as to whether the Veteran's hypertension was aggravated by his service-connected diabetes. However, the March 2016 VA examiner does not provide sufficient explanation for the basis of the opinion that hypertension was not aggravated by service-connected disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.""). Additionally, it is well-settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). However, the March 2016 VA examiner primarily relied on the lack of diagnosis of hypertension during and after the Veteran's active service to support the negative nexus opinion. This rationale is deficient because it violates the holdings in Buchanan and Barr. Id. The evidence is also not clear regarding the date of initial diagnosis of the Veteran's hypertension. Given the deficiencies in the VA medical opinions of record, the Board must remand this case for a supplemental medical nexus opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding treatment records for the Veteran from the VA Medical Center in Houston, Texas, and all associated outpatient clinics, dated from March 2013 to the present. All actions to obtain the requested records should be documented in the claims file. The RO should also attempt to obtain any post service treatment records pertaining to hypertension which have not been previously obtained, to include from the 1970's, 1980's and 1990. 2. Forward the Veteran's claims file to the examiner who conducted the July 2015 hypertension examination to determine whether there exists a relationship between his currently diagnosed hypertension and his service or service-connected disabilities. If the July 2015 VA examiner is not available, schedule the Veteran for a new VA examination. a. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b. The examiner must provide opinions as to the following: i. Whether it is at least as likely as not that hypertension was aggravated beyond its natural progression by any of his service-connected disabilities. The following disabilities are service-connected: coronary artery disease status post heart transplant, posttraumatic stress disorder, diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, scars from cardiac surgery, and bilateral cataracts. ii. If the examiner determines that hypertension was not aggravated by a service-connected disability, determine whether it is at least as likely as not that the Veteran's hypertension began during active service, is related to an incident of service, or began within one year after discharge from active service. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. d. In rendering the requested opinion and rationale, the examiner must address and attempt to reconcile any conflicting medical opinion of record, to include the April 2005, November 2006 and August 2007 VA examination reports discussed above, and the differing histories with regard to the date of onset of hypertension (1976 versus 1990), whether or not it was well controlled, and whether or not it increased in severity as a result of the service-connected diabetes. The examiner should also note that the fact that there is no documentation of treatment or diagnosis in service is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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). _________________________________________________ MICHAEL MARTIN 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).