Citation Nr: 1801352 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-35 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, including as due to exposure to herbicides and/or secondary to service connected ischemic heart diseases. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. M. Harris, Associate Counsel INTRODUCTION The Veteran had active military service from March 1968 to March 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since been transferred to the Detroit, MI RO. In October 2017, the Veteran testified at a Board hearing at the Detroit RO before the undersigned Veteran's Law Judge. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the appeal. Private treatment records dated as early as March 2006, show that the Veteran was diagnosed with hypertension. In a September 2011 VA examination, the examiner noted the Veteran was diagnosed with hypertension in 2001. The examiner opined that hypertension was less likely than not incurred in or caused by service. The examiner reasoned there was no objective finding to support a diagnosis of hypertension during service and that the Veteran did not meet the criteria to support a diagnosis of hypertension until 29 years after service. In a February 2012 VA examination, the examiner stated that the Veteran was diagnosed with hypertension in 2007. The examiner opined that the Veteran's hypertension is not caused by or due to or the result of or aggravated by the Veteran's coronary artery disease or ischemic heart disease, and that his hypertension is more in keeping with natural age progression. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In regard to September 2011 VA examination, in basing the opinion primarily upon the lack of evidence of hypertension in service treatment, the examiner failed to provide a sufficient basis for the negative etiological opinion. With regard to the February 2012 VA examination, the examination did not provide sufficient rationale for the opinions expressed with regard to the issue of etiology of hypertension and whether it is a result of or aggravated by the Veteran's coronary artery disease. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported with an analysis); Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008) (noting that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion"). Moreover, the opinion is based on an inaccurate factual premise, the fact that hypertension was diagnosed in 2007 when the record shows a diagnosis as early as 2006 according to private records and as early as 2001 according to the September 2011 VA examiner. Given the inadequacies in the VA examination and opinions, a remand is warranted in order to provide the Veteran with an additional VA examination that addresses the questions delineated below. Moreover, the Board notes that the Veteran has now argued that his hypertension was caused by exposure to herbicides. The Board notes that exposure to herbicides has been conceded by the RO due to the Veteran's service in the Republic of Vietnam. The record does not contain an opinion as to the relationship, if any, between the Veteran's exposure to herbicides and his hypertension. This opinion should be obtained. It also appears the appellate record is incomplete. At his October 2017 Board hearing, the Veteran testified that he continues to seek treatment from the VA regarding his hypertension. The Veteran also contends that based on new studies he believes his hypertension is related to his coronary artery disease, otherwise characterized as ischemic heart disease and that this could be medically supported by his treatment providers. In light of the Veteran's contentions and the evidence of record, such records must be obtained upon remand. 38 C.F.R. § 3.159(2017). Finally, the Board also notes that the evidence of record indicates that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA). While not clear as to the basis of the award because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Consequently, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the issues on appeal. 38 U.S.C. § 5103A(b). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the AOJ must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of his response, the RO must obtain all outstanding (a) service personnel records; and (b) VA treatment records pertinent to the claim, to include treatment records for hypertension and coronary artery disease and ischemic heart disease, particularly those records dated from September 2017 onward. All attempts to secure this evidence must be clearly documented in the claim file. If the records are unavailable, it should so be noted in the file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Ask the Social Security Administration to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA benefits, to include any medical records considered in making a decision on that application. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claim file. 3. After completion of the development in (1) and (2) above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed hypertension. The claim file must be made available to the examiner for their review and the report must indicate that the record was reviewed. All indicated tests and studies should be completed. The examiner should provide an opinion as to whether the diagnosed hypertension at least as likely as not (50 percent or greater probability) had its onset during active service or is in any way related to his active duty service, to include confirmed exposure to herbicides. The examiner should also provide an opinion as to whether hypertension was caused by or aggravated beyond its natural progression by the service connected coronary artery disease. A complete rationale for all opinions rendered must be provided. The examiner is reminded that a reasoning based on the absence of a diagnosis in service will be deemed inadequate. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).