Citation Nr: 1644790	
Decision Date: 11/29/16    Archive Date: 12/09/16

DOCKET NO.  10-00 395A	)	
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, posttraumatic stress disorder (PTSD) and/or coronary artery disease.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sarah Campbell, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1967 to January 1971.

The appeal to the Board of Veterans' Appeals (Board) on the claim for service connection for bilateral hearing loss arose from a July 2008 rating decision in which the RO, inter alia, denied service connection for bilateral hearing loss.  In July 2008, the Veteran filed a notice of disagreement (NOD) with respect to this matter. The RO issued a statement of the case (SOC) in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. 

The appeal to the Board on the matter of service connection for hypertension arose from a December 2011 rating decision in which the RO, inter alia, denied service connection for hypertension.  In July 2012, the Veteran filed a notice of disagreement (NOD) with respect to this issue.  The RO issued a statement of the case (SOC) in March 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2014. 

In his January 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO.  A June 2014 letter informed the Veteran that his hearing was scheduled in August 2014.  Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing.  As such, his hearing request has been deemed withdrawn.  See 38 C.F.R. § 20.704 (d) (2014). 

In August 2015, the Board, inter alia, remanded the hypertension and hearing loss claims for further development.  After accomplishing further In a March 2016 rating decision, the RO granted service connection for bilateral hearing loss; this matter is being formally dismissed, below.  However, the AMC continued the denial of the hypertension claim (as reflected in a March 2016 supplemental statement of the case (SSOC).

This appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA (VVA) claims processing systems.

As a final preliminary matter, the Board notes that, after the RO's last adjudication of the heart claim, the Veteran submitted additional evidence pertinent to the hypertension claim that has been associated with the record but that has not been considered by the RO in conjunction with the current appeal.  As the Veteran's substantive appeal was filed after February 2, 2013, a waiver of initial consideration of such evidence is not required.   See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154 , § 501, 126 Stat. 1165, 1190  (Camp Lejeune Act); 38 C.F.R. § 20.1304 (2015).  However, as explained in the remand, below, as the claim is being remanded, in part, for a medical professional to consider the evidence, the RO will, nonetheless, still have the initial opportunity to adjudicate the claim in light of such evidence.

The Board's dismissal of the claim for service connection for bilateral hearing loss is set forth below.  The claim for service connection for hypertension is being remanded to the agency of original jurisdiction (AOJ).  VA will notify the Veteran when further action, on his part, is required.


FINDING OF FACT

In a March 2016 rating decision, the RO granted the Veteran's claim for service connection for bilateral hearing loss. 


CONCLUSION OF LAW

As the March 2016 award of service connection for bilateral hearing loss represents a grant of the benefit sought on appeal with respect to the Veteran's bilateral hearing loss, there remains no case or controversy with respect to that issue affecting the provision of benefits by VA over which the Board may exercise jurisdiction.  38 U.S.C.A. §§ 511, 5107, 7104 (West 2014); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a). 

One of the principal functions of the Board is to make determinations of appellate jurisdiction.  38 C.F.R. § 19.4.  The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue.  38 C.F.R. § 20.101(d).

Although the Veteran perfected an appeal to the Board with respect to the July 2008 denial of service connection for bilateral hearing loss, in a subsequent rating decision issued in March 2016, the RO granted service connection for bilateral hearing loss.  Under these circumstances, the Board finds that the service connection claim for bilateral hearing loss, which was formerly in appellate status prior to March 2016, has been granted by the decision of the lower adjudicative body, fully resolving the Veteran's appeal as to this matter.  Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. §19.4.  In the absence of any justiciable question, the appeal of the claim for service connection for bilateral hearing loss must be dismissed.



ORDER

The appeal as to the claim for service connection for bilateral hearing loss is dismissed.



REMAND

Unfortunately, the Board finds that further action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter.  

The Veteran has asserted that his hypertension is due to exposure to herbicides while stationed in Vietnam and/or secondary to his service-connected PTSD, CAD, and type II diabetes mellitus.  

Pursuant to the Board's August 2015 remand, the Veteran underwent a VA examination in September 2015.  The VA examiner concluded that the Veteran's hypertension is less likely than not the result of injury or disease incurred or aggravated in service, to include exposure to herbicides during his service in Vietnam.  The VA examiner explained that the Veteran's hypertension did not have it's onset until the 1980s, which was many years after leaving military service and that the medical literature demonstrates that Vietnam veterans not involved in the very limited career field in the U.S. Army Chemical Corps, who were directly involved in the active spraying of Agent Orange on a daily basis, did not have any increased incidence of hypertension above the civilian population not exposed to Agent Orange.  

The VA examiner also concluded that the Veteran's hypertension was not caused by his diabetes mellitus, PTSD, and/or CAD.  The examiner explained that hypertension preceded the onset of CAD by over a decade and diabetes mellitus by over two decades.  The VA examiner also indicated that medical literature and research does not support that hypertension is caused by PTSD.

Finally, the examiner concluded that the Veteran's hypertension was/is less likely than not aggravated (worsened beyond the natural progression) by the Veteran's service-connected type II diabetes mellitus, PTSD and/or CAD.  The examiner explained that the Veteran's hypertension has followed it's natural progression, as he  was diagnosed with hypertension over two decades ago and he is only currently on low doses of two blood pressure medications (the reported vinegar is not considered a treatment as this is not medically proven to benefit blood pressure).  She explained that hypertension over time naturally requires more or additional medications to control the blood pressure because of changes with aging.  The examiner pointed out that the Veteran is on less blood pressure medication (his hypertension is doing better than anticipated) than would have been anticipated after two decades of hypertension, therefore, there is no evidence of the hypertension worsened beyond its natural progression.

Subsequently, the Veteran submitted private treatment records, to include a notation that indicated that the Veteran's hypertension is a risk factor or contributor to the Veteran's developing CAD.  The Veteran also submitted a medical article, which indicated that "short-term stress-related spikes in your blood pressure added up over time may put you at risk of developing long-term high blood pressure and that "health conditions related to stress -such as anxiety, depression, and isolation from friends and family-may be linked to heart disease . . . [as there] may be . . . hormones produced when you're emotionally stressed [that] may damage your
arteries, leading to heart disease.  It may also be that being depressed may cause self-destructive behavior, such as neglecting to take your medications to control high blood pressure or other heart conditions."

Here, the VA examiner specifically concluded that the Veteran's hypertension was not caused by or aggravated by his CAD or PTSD.  However, the new submission of evidence seems to indicate some relationship between hypertension and CAD and or mental health conditions.  As the additional medical evidence was not considered, the Board finds that a remand for further medical opinion, based on full consideration of all medical and lay evidence-to include the newly-submitted private evidence-and supported by complete, clearly-stated rationale is needed to resolve the claim for service connection for hypertension.  

To this end, the AOJ should arrange to obtain an addendum opinion from the September 2015 examiner, or from another appropriate physician, based on claims file review (if possible).  The AOJ should only arrange for further examination of the Veteran if such is deemed necessary in the judgment of the individual designated to provide the addendum opinion.

The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claim.  See 38 C.F.R. § 3.655 (2015).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 

Prior to obtaining further medical opinion in connection with the remaining claim on appeal, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.

As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Central Alabama Health Care System, and that records from these facilities dated through May 2016 are associated with the file; however, more recent records may exist.  Hence, the AOJ should obtain all pertinent VA treatment records dated since May 2016.

The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) records), explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). 

Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2015).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the remaining claim on appeal.  
 
Accordingly, this matter is hereby REMANDED for the following action:

1.  Obtain from the VA Central Alabama Health Care System all outstanding, pertinent records of evaluation and/or treatment of the Veteran since May 2016.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.  

2.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the remaining claim on appeal that is not currently of record.  Specifically request that the Veteran furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the physician who evaluated the Veteran and provided the September 2015 opinion.

If that individual is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed medically necessary, document that fact in the claims file, and arrange for the Veteran to undergo VA examination by an appropriate physician-preferably, a cardiologist.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND), must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. 

If an examination is conducted, all indicated tests and studies should be accomplished (with all results provided to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.

Following review of the record, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension (a) was caused OR (b) is aggravated (worsened beyond the natural progression) by the Veteran's service-connected type II diabetes mellitus, PTSD and/or coronary artery disease.  Both causation and aggravation must be addressed.

If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, to include identifying (to the extent possible) the baseline level of disability prior to the aggravation.

In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence, to include the newly submitted private treatment records and medical article submitted by the Veteran, as well as the Veteran's assertions.

All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 

5.  To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

6.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on 
in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority.

7.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



_________________________________________________
JACQUELINE E. MONROE 
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 the appeal.  38 C.F.R. § 20.1100(b) (2015).

Department of Veterans Affairs