Citation Nr: 1751324 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-03 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for non-ischemic cardiomyopathy claimed as heart condition. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a lumbar strain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1998, and from January 2003 to December 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board scheduled the Veteran for a VA examination in January 2011 to address the Veteran's claims for entitlement to service-connection for a heart condition, hypertension, and a low back disability. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner's responses are inadequate to resolve the Veteran's claims. The VA examiner first addressed the Veteran's hypertension claim. The VA examiner noted that the Veteran was not treated for sustained hypertension while in service, indicated on his SF-93 from January 1998 that he did not have hypertension, and there is one mildly elevated diastolic blood pressure reading on an SF-98. The VA examiner opined that a diagnosis of hypertension cannot be made on isolated elevated blood pressure readings, but instead is made on elevated blood pressure readings consistently over time. However, the Board finds that the VA examiner failed to address all of the relevant evidence. April 1988 blood pressure readings were 144 over 68, in August 1988 the readings were 134 over 82, later in August they were 140 over 90, in January 1998 they were 130 over 92, and in an undated reading the measurements were 142 over 87. A report of medical history from October 1994 indicates that the Veteran had a family history of both male and female family members having hypertension, that four of his sisters had hypertension, and that his high blood pressure was asymptomatic. Finally, the Board notes that the Veteran testified at the hearing that he had numerous high blood pressure readings in service. Thus, the record is inconsistent with the VA examiner's opinion and a new opinion is necessary. The VA examiner next addressed the Veteran's claim of service connection for a low back disability. The VA examiner noted that the Veteran had intermittent and transitory episodes of low back pain in service. However, the VA examiner noted that the Veteran has complained the pain persisted since service and is now constant and daily. The VA examiner pointed out that the Veteran worked in construction after service. Finally, the VA examiner stated that it would be speculative to opine on the Veteran's reported back pain due to an unknown history of intercurrent injuries. From the examination report it does not appear that the VA examiner asked the Veteran for a history of intercurrent injuries or otherwise attempted to obtain information about these injuries. The VA examiner also did not explain in what manner the Veteran's work in construction is relevant to his service connection claim. Further, the VA examiner did not address the Veteran's competent reports of back pain since service. As the VA examiner failed to provide an opinion adequately addressing the Veteran's claim, another opinion is necessary. Finally, the VA examiner addressed the Veteran's claim of service connection for a heart condition. First, the VA examiner only addressed the Veteran's claim as secondary to the Veteran's hypertension, not as directly caused by the Veteran's service. The Veteran's initial claim was for service-connection for a heart condition. Therefore, the VA examiner should have also addressed whether the Veteran's claimed heart condition is directly related to his service. Further, the VA examiner stated that it would be speculation to opine that the Veteran's non-ischemic cardiomyopathy is caused by his hypertension and then listed various causes for non-ischemic cardiomyopathy. Yet the VA examiner did not explain whether this was because of the limits of medical knowledge, some complication of the Veteran's case, or a factor specific to the VA examiner. As for the possible causes of cardiomyopathy, the VA examiner failed to identify which possible alternate causes applied to the Veteran's claim. Thus, a new VA examination is necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed heart condition. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's STRs, the January 2011 VA examination report, and the Veteran's report of an in-service diagnosis at the May 2017 hearing. The examiner should then: (a) Provide a specific diagnosis for any current heart disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed heart disability originated during, or is etiologically related to, active duty service. (c) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any currently diagnosed heart disability was caused or aggravated by the Veteran's service-connected disability or disabilities. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed hypertension. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's STRs, including the multiple STRs indicating elevated blood pressure readings and the October 1994 STR indicating multiple family members diagnosed with hypertension, and also the Veteran's May 2017 hearing testimony reporting twenty or thirty elevated blood pressure readings in service. The examiner should then: (a) Provide a specific diagnosis for any current hypertension. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed hypertension originated during, or is etiologically related to, active duty service. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed lumbar strain. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's STRs, the January 2011 VA examination report, and also the Veteran's May 2017 hearing testimony indicating low back pain since service. The examiner should then: (a) Provide a specific diagnosis for any current low back disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed low back disability originated during, or is etiologically related to, active duty service. The examiner should specifically address the Veteran's complaints of low back pain since service. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 5. After the above development has been completed, readjudicate the Veteran's claims. If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. 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). _________________________________________________ Michael J. Skaltsounis 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) (2016).