Citation Nr: 1805673 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-32 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for a heart disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a hypertensive vascular disability, to include hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1974 to November 1976 and from April 1980 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Waco, Texas, Regional Office of the Department of Veterans Affairs (VA) which denied compensation under the provisions of 38 U.S.C. § 1151 for both a heart disability and a hypertensive vascular disability. The Veteran appeared at a January 2011 hearing before an Acting Veterans Law Judge at the Waco, Texas, Regional Office. A hearing transcript is of record. In March 2011, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development of the record. In September 2012 and May 2013, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development of the record. In October 2013, the Veteran was informed that the Acting Veterans Law Judge who had conducted the January 2011 hearing had retired and he therefore had the right to an additional hearing before a different Veterans Law Judge who would decide the claim. The Veteran did not respond to the Board's notification. In January 2014, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development of the record. In November 2014, the Board denied compensation under the provisions of 38 U.S.C. § 1151 for a heart disability and a hypertensive vascular disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2015, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Remand; vacated the November 2014 Board decision; and remanded the Veteran's claims to the Board for additional action consistent with the Joint Motion for Remand. In February 2016, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development of the record. In January 2017, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction so that the Veteran could be provided a hearing before a Veterans Law Judge. In June 2017, the Veteran attended a hearing before the undersigned Veterans Law Judge at the St. Louis, Missouri, Regional Office (RO). A hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). REMAND The Parties' August 2015 Joint Motion for Remand directed that VA medical records from 2003 and 2004 which were not a part of the record were to be obtained and incorporated into the record. The requested additional VA clinical documentation was incorporated into the record following multiple Board remands to obtain it. VA clinical documentation dated in October 2003 shows that the Veteran exhibited a blood pressure reading of 146/80 and was diagnosed with "hypertension, under good control." A May 2016 addendum to an August 2013 VA cardiovascular examination report states that the clinical record "showed diagnosis and commencement of medication for hypertension 8/16/2004" and "prior to this time, the Veteran did not have BP readings consistent with a diagnosis of HTN." The examiner concluded that "based on current medical knowledge, including the information that the etiology of primary hypertension is not well understood, it is less likely than not that the Veteran's hypertension was medical reasonably foreseeable prior to the time of initial diagnosis and treatment." The examiner did not note or otherwise address the October 2003 VA clinical documentation establishing that the Veteran was diagnosed with and treated for hypertension by VA prior to August 2004. An August 2016, VA cardiovascular evaluation indicates that the "Veteran diagnosed with hypertension 2004 and appropriately managed at the time of diagnosis" and "previous blood pressure readings were within normal range." The VA cardiologist commented that the Veteran's chart had been reviewed multiple times, and there was no indication that his hypertension was misdiagnosed or mismanaged. The Veteran's heart disability was not caused by or made worse as a result of the VA treatment of hypertension. There was no evidence of carelessness, negligence, lack of skill, or similar incidence or fault on the part of the attending VA personnel. The hypertension and heart disorder could not have been foreseen; and there was no evidence of failure to timely diagnose or manage hypertension or heart disease. Notwithstanding that statement that the Veteran's record had been repeatedly reviewed, the VA physician did not note or otherwise address the October 2003 VA clinical documentation establishing that the Veteran was diagnosed with and treated for hypertension by VA prior to August 2004. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the VA opinions of record are based on an incorrect statement of fact, that hypertension was first diagnosed in August 2004, additional examination is needed Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2018). Expedited handling is requested. 1. Schedule the Veteran for a VA cardiovascular examination conducted by a medical doctor who has not previously examined him to assist in determining the nature and severity of the Veteran's cardiovascular disabilities, and their relationship, if any, to VA treatment. The examiner must review the record, including VA clinical documentation dated in October 2003 establishing the diagnosis of and treatment for hypertension, and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has any additional cardiovascular disability, to include any heart or hypertension disability, as a result of VA treatment? (b) If there is additional recurrent cardiovascular disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment to the Veteran? (c) If there is additional recurrent cardiovascular disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? 2. Then readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).