Citation Nr: 1740468 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 13-08 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for hypertension, to include as secondary to contaminated water exposure at Camp Lejeune, North Carolina, to include as secondary to a service-connected anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.Lech, Counsel INTRODUCTION The Veteran had active duty from March 1966 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the July 2017 Appellant's Brief, the Veteran's representative waived the Agency of Original Jurisdiction's (AOJ) initial consideration of any evidence added to the record since the certification of the case to the Board. As such, the Board will consider it in this decision. The Veteran was provided a hearing before a Decision Review Officer (DRO) sitting at the RO in October 2014. A transcript of the hearing is of record. The Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities in the May 2013, but it 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) (2016). The appeal is REMANDED to the AOJ. REMAND The Veteran's VA treatment records show that he was first diagnosed with hypertension in April 2008. See April 10, 2008, VA treatment records. VA amended 38 C.F.R. §§ 3.307 and 3.309 and established presumptive service connection for Veterans, Reservists, and National Guard members exposed to contaminants in the water supply at Camp Lejeune from August 1, 1953 through December 31, 1987, who later developed one of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. See 38 C.F.R. §§ 3.307, and 3.309(f) (effective March 14, 2017). VA has conceded that the Veteran was stationed at Marine Corps Base Camp Lejeune and, thus, was exposed to contaminated water during active service. See October 2016 rating decision. Although hypertension is not on the list of the presumptive diseases, the Veteran may still show that the disorder with which he has been diagnosed is related to the contaminated drinking water at Camp Lejeune. See generally 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d) (2016); see also Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (holding that a veteran's failure to establish service connection based on an available presumption does not foreclose "the opportunity to show direct service connection by establishing direct actual causation"). There is no opinion of record to address this question. Thus, a medical opinion on this issue should be obtained. In addition, a general practitioner opined in October 2014 that the Veteran's anxiety disorder contributed to his high blood pressure. See translated October 30, 2014 opinion, in VBMS. It is unclear on what the physician based his opinion, and whether the physicians reviewed the Veteran's claims file and the medical records therein. As such, while this medical opinion is inadequate, a clarification should be sought from Dr. Perez Lopez, who wrote the October 2014 opinion to ask him on what he had based his opinion, and had he reviewed the Veteran's claims file. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). If clarification is not accomplished, a VA medical opinion on this issue should be obtained. In light of the fact that the Veteran is, as of May 14, 2013, in receipt of a 100 percent disability rating, the RO should contact the Veteran first before proceeding with further development to check if he wishes to proceed with his appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative to ascertain whether he wishes to proceed with the appeal, as he is currently in receipt of a 100 percent disability rating. 2. If the Veteran wishes to proceed with the appeal, request that the Veteran provide VA with an authorization to request medical records from Dr. Perez Lopez, to include treatment records, which pertain to his opinion. 3. Request that the private physician who wrote the October 2014 opinion (Dr. Perez Lopez) to clarify his findings that the Veteran's anxiety disorder contributed to his high blood pressure. If the opinion is issued in any other language besides English, it should be translated, and both the original and translation should be included in the claims file. Specifically, the physician should explain: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his service-connected anxiety disorder. b) Whether it is at least as likely as not that the Veteran's hypertension is aggravated (i.e. chronically worsened) by his service-connected anxiety disorder. i. If aggravation is found, the physician should address the following medical issues to the extent possible: 1. The baseline manifestations of the Veteran's hypertension found prior to aggravation; and 2. The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected anxiety disorder. 4. Forward the claims file to a subject matter expert on the Camp Lejeune Contaminated Water Project for an opinion. The need for a physical examination is left to the discretion of the examiner selected to provide the opinion. For each opinion rendered, the examiner should provide a comprehensive rationale and discussion, to include citation to evidence in the record, known medical principles, and medical treatise evidence. The examiner should conduct a thorough review of the claims folder and provide answers to the following questions: a) Whether it is at least as likely as not that the Veteran's hypertension had its onset during active service or is otherwise related to any incident of active service, to include exposure to contaminated water at Camp Lejeune. b) If clarification from Dr. Perez Lopez is not accomplished, the examiner should also opine as to whether it is at least as likely as not that the Veteran's hypertension is aggravated (i.e. chronically worsened) by his service-connected anxiety disorder, making certain to reference Dr. Lopez' s October 2014 statement of aggravation. i. If aggravation is found, the examiner should address the following medical issues to the extent possible: 1. The baseline manifestations of the Veteran's hypertension found prior to aggravation; and 2. The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected anxiety disorder. 5. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC and allow an appropriate period of time for response. Thereafter, return the claim to the Board. 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). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs