Citation Nr: 1805549 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-22 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart condition. 3. Entitlement to service connection for a fatty liver condition. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from October 1972 to October 1974. This appeal arises before the Board of Veterans' Appeals (Board) from a January 2013 rating decision in which the Department of Veteran Affairs (VA), Nashville, Tennessee, Regional Office (RO) denied entitlement to service connection for hypertension, a heart condition, and a fatty liver condition. The case was subsequently transferred to the Montgomery, Alabama RO. In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's hypertension, heart condition, and fatty liver condition. The Veteran has asserted that his hypertension was either caused by or aggravated by his period of service. A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In November 2012, the Veteran was afforded a VA examination. The examiner determined that the Veteran's current hypertension was less likely as not aggravated by his time in service. The examiner reported that the service medical records show that upon entry and exit from service, the degree of the Veteran's blood pressure was the same, specificall,y he was borderline hypertensive. The Board notes that, though the Veteran self-reported that he was denied entry into the draft due to his high blood pressure at his August 1974 separation examination, his October 1972 entry examination does not note that the Veteran had hypertension at the time of entry. There is also no finding of record of clear and unmistakable evidence that the disease or injury existed prior to service. As the November 2012 VA examination did not use the correct standard of clear and unmistakable evidence, it is inadequate for the purposes of adjudicating the claim. The Veteran submitted September 2017 correspondence in which his private primary care physician stated that his elevated blood pressure condition may have started in the Veteran's Army service. This statement lacks the necessary reasons and bases to bolster the medical opinion. Therefore, it too is inadequate for the purpose of adjudicating the claim. As there is no adequate medical nexus opinion of record, a remand is necessary. Secondary Service Connection At a September 2017 Board hearing, the Veteran clarified that he is seeking service connection for a heart condition and a fatty liver condition, both as secondary to his hypertension. The Board will consider all theories of service connection, to include service connection on a secondary causation basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A January 2013 rating decision denied service connection for fatty liver condition, in part, because the record did not establish a diagnosis. However, the Veteran submitted a June 2012 private medical record which indicates the Veteran has a diagnosis of fatty liver disease. Likewise, the November 2012 VA examination indicates that the Veteran has been diagnosed with atrial fibrillation and a mitral valve prolapse. Thus, current diagnoses for these conditions have been established. As the outcome of the Veteran's claim for service connection for hypertension would affect the Veteran's claims for service connection for a heart condition and a fatty liver condition, these matters are inextricably intertwined. Thus, the issues are remanded pending adjudication of the claim for service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's file to an appropriate VA examiner. The examiner should receive a copy of this remand and review the Veteran's file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner should determine: (a) Is it clear and unmistakable that the Veteran entered active military service with pre-existing hypertension? (b) If YES, is it clear and unmistakable that the Veteran's pre-existing hypertension WAS NOT aggravated beyond the natural progress of the disorder by his active military service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. The examiner is advised that the Veteran served on active duty from October 1972 to October 1974. (c) If the Veteran DID NOT clearly and unmistakably (i.e., highest degree of medical certainty) enter active military service with pre-existing hypertension, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current hypertension is etiologically related to any symptomatology noted during such service? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of hypertension symptoms. The examiner should explain the medical basis for the conclusions reached. The examiner should provide reasons for all opinions. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should state, whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 2. Readjudicate the claims. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA 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). Department of Veterans Affairs