Citation Nr: 1805881	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-06 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for a heart disorder, to include as secondary to service-connected panic disorder with agoraphobia or hypertension.  

3.  Entitlement to service connection for a psychiatric disorder, other than panic disorder with agoraphobia.  

4.  Entitlement to a disability rating in excess of 30 percent for service-connected panic disorder with agoraphobia prior to April 4, 2013 and in excess of 50 percent on and after April 4, 2013.  

5.  Entitlement to a disability rating in excess of 10 percent for service-connected hypertension.  

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).  

REPRESENTATION

Veteran represented by:	Massachusetts Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N.K., Associate Counsel 


INTRODUCTION

The Veteran had active service in the United States Army from September 1982 to January 1992.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions in December 2010 and October 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

In February 2016, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM). LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issues on appeal.

The issues of entitlement to service connection for a heart disorder and a psychiatric disorder other than panic disorder with agoraphobia as well as entitlement to higher evaluation for panic disorder with agoraphobia and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not have bilateral hearing loss for VA purposes.

2.  The Veteran's hypertension is productive of diastolic blood pressure predominantly 100 or more, and requires continuous medication for control, but is not manifested by a diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110 , 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for an evaluation in excess of 10 percent for hypertension are not met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.104, Diagnostic Code 7101 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided by letters in June 2010 and October 2011.  The Board notes that the Veteran has not alleged prejudice with regard to the content or timing of VA's notices, but did allege a failure of the duty to assist in the development of his claims in his VA Form 9 in February 2013.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  

The Veteran specified that the VA failed to properly consider all medical evidence and other evidence submitted for his claims, and generally failed to "assist" him in developing his claim.  However, as described below, the Board finds that the VA has fulfilled the requisite duty to assist.  Thus, adjudication of his claims at this time is warranted.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records and service personnel records have been obtained.  Additionally, the Veteran was afforded VA examinations for his disabilities in October 2016 for his hypertension and in August 2011 and October 2016 for his hearing loss.   The Board finds these examinations adequate as they provide the objective information necessary for these two appeals - the blood pressure readings and audiometric findings.  VA treatment records are also associated with the claims folder.  Finally, the Veteran has provided lay statements regarding his disabilities and these statements are associated with the claims file.  

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected hypertension since he was last examined in October 2016.  38 C.F.R. § 3.327(a) (2017).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995).  Based on the foregoing, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 

Finally, the Board finds there was substantial compliance with the prior remand.  In the June 2016 remand, the AOJ was directed to obtain VA treatment records to provide the Veteran with a current VA examination for his hypertension and to provide a current VA examination and etiological opinion for the Veteran's bilateral hearing loss.  VA records were obtained and VA examinations were conducted in October 2016.  Accordingly, the Board finds that the AOJ has complied with the instructions of the prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

Additionally, the Veteran testified at a February 2016 Board hearing.  A Veterans Law Judge (VLJ) who conducts a hearing must fulfill two duties.  38 C.F.R. 
§ 3.103(c)(2) (2015); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the February 2016 Board hearing, the Veteran was assisted at the hearing by an accredited representative.  The representative and the VLJ asked questions to ascertain the presence and etiology of claimed service connected disabilities, in addition to ascertaining the severity of his increased rating claim.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. 

Increased Rating

The Board notes that the Veteran was service connected for hypertension in a January 1993 rating decision and assigned an initial 10 percent rating.  In 2010 the Veteran filed a claim for an increased evaluation for his hypertension, and such was denied in a December 2010 rating decision.  The Veteran appealed.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. 
§ 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt is resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 
Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

The Veteran's hypertension has been assigned a ten percent rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease).  Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more.  A 10 percent rating also is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating is assigned for hypertension with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more.  The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104 (2017).

In June 2010 records, the Veteran's blood pressure readings were 104/68, 97/62, 122/70 and 132/77.  See West Roxbury VAMC and Morton Hospital Treatment records.  In July 2010 records the Veteran's blood pressure readings were 128/88, 133/77 and 118/71.  See Good Samaritan Medical records.  In August 2010 the Veteran's blood pressure readings were 171/109, 130/92, 114/69, 107/69, 101/70, 98/66, 130/92, 138/91 and 121/68.  See Brockton VAMC Treatment Records.  In September 2010 the Veteran's blood pressure readings were 143/90, 101/67, 102/60 and 103/59.  In October 2010 at the Brockton VAMC the Veteran had a blood pressure reading of 119/84.  

In 2011 the Veteran's Brockton VAMC treatment records reflect blood pressure readings in February 2011 of 110/69, 120/80, 98/62, 137/91, 142/91 and 126/88.  In March and April 2011 the Veteran's blood pressure readings were 132/82, 112/70 and 126/77 at the Brockton VAMC.  In July and September 2011 his readings were at 113/66 and 135/82.  

In 2010 and 2011 the Veteran's blood pressure was also noted at the Boston VAMC.  In September 2010 the Veteran had blood pressure readings of 143/90.  In February 2011 the Veteran had readings of 142/91, 137/91, 98/62 and 120/80.  In March 2011 the Veteran's blood pressure read 112/70.    

In October 2016 the Veteran was afforded a VA examination for his hypertension.  The Veteran reported that he was on medication for his hypertension.  The examiner confirmed the Veteran's diagnosis of hypertension, finding that he had readings of 160/100, 160/94 and 140/90.  

The Board finds upon review of the evidence of record that an evaluation in excess of 10 percent for hypertension is not warranted for the Veteran's period on appeal.  The record reflects that the Veteran takes continuous medication to control his hypertension, as noted in the 2016 VA examination.  Additionally, the Veteran's blood pressure readings reflect multiple diastolic readings of predominantly 100 or more scattered throughout the years 2010 through 2016 as noted above.  However, the Board finds that a higher rating of 20 percent is not warranted, as the Veteran's hypertension has not manifested in readings with diastolic pressure predominantly 110 or more or systolic pressure predominantly 120 or more.  See 38 C.F.R. § 4.104 (2017). Therefore, the evidence does not more nearly approximate a 20 percent evaluation.  

The Board finds the Veteran competent and credible to testify as to his symptoms; however, a rating for hypertension is dependent on the objective blood pressure readings.  The Veteran is not competent to testify as to his specific blood pressure readings, which require objective testing to determine.  Therefore, the Board finds the objective medical evidence to be more probative in assigning his rating.  Accordingly, the Board concludes that an evaluation in excess of 10 percent for the Veteran's hypertension is not warranted. 

Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Service Connection

The Veteran seeks entitlement to service connection for bilateral hearing loss that he asserts is etiologically related to in-service exposure to hazardous noise levels.  In the instant case, the Board finds against service connection for bilateral hearing loss because a present disability has not been shown.

 Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017). 

In addition, service connection for certain chronic diseases, including sensorineural hearing loss (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015).  Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101 , 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017).

A Veteran is competent to report exposure to hazardous noise, when symptoms of hearing loss first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994).

The Veteran was afforded a VA examination in August 2011.  At that examination the examiner found that the Veteran had normal hearing of the right ear and had sensorineural hearing loss of the left ear in the frequency range of 6000 or higher HZ frequency.  The pure tone thresholds were as follows: 





HERTZ


500
1000
2000
3000
4000
RIGHT
20
15
15
10
20
LEFT
15
5
5
10
25

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left ear. The examiner noted that the Veteran's MOS during service carried a high probability of exposure to acoustic trauma, and that the Veteran's exposure to a grenade explosion during service also exposed him to acoustic trauma.  See August 2011 VA Examination Report.  Therefore, the examiner opined that it is at least as likely as not that the Veteran's threshold shift of the right ear was caused by his military noise exposure.  

In the February 2016 Board hearing, the Veteran testified that his hearing had worsened.  As a result, the Board remanded the claim in order to ascertain whether the Veteran had a present hearing loss disability for VA purposes.

The Veteran was afforded another VA examination in September 2016.  At that examination the examiner diagnosed significant threshold shifts in hearing of the right ear since service and sensorineural hearing loss of the left ear.  The pure tone thresholds were as follows: 




HERTZ


500
1000
2000
3000
4000
RIGHT
25
15
5
10
25
LEFT
5
0
5
15
30

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear.

As noted above, the Board finds that service connection is not warranted.  The Veteran's right ear, although it incurred threshold shifts, has shown normal hearing and the left ear, although the elevated thresholds for the left ear are beyond the range of normal hearing, these shifts are not significant enough to reach the level to be considered a hearing disability (by VA standards) under 38 C.F.R. § 3.385.

The Board notes that in the August 2011 and September 2016 examiners provided etiological opinions, although the Veteran's bilateral hearing loss is not considered disabling for VA purposes.  Although the Board acknowledges these opinions, a current disability is a threshold issue for service connection.  See 38 C.F.R. §3.385; Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (finding that VA's threshold requirement for hearing loss disability for VA purposes is valid).  Without a current disability, service connection cannot be granted.  In short, there are no audiological tests that establish hearing loss disability at any time during the appeal period.  38 C.F.R. § 3.385; McClain, 21 Vet. App. at 321. The Board has reviewed all the medical evidence, including VA treatment records, and the VA examinations of record are the only audiometric data of record during the claim and appeal period.

The Veteran is competent to comment on his difficulty hearing.  However, the diagnosis of a hearing loss disability for VA purposes is not something that can be determined by mere observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis).  Nor is this question simple, as it requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported.  Thus, the Veteran's implicit allegation via his claim that he has a bilateral hearing loss disability is not competent evidence, and has little probative value in the determination of whether the Veteran has a bilateral hearing loss disability for VA purposes.

Therefore the Board finds that the Veteran does not have bilateral hearing loss for VA purposes.  The preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss.  See Brammer, 3 Vet. App. at 225.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An evaluation in excess of 10 percent for service connected hypertension is denied.  

Service connection for bilateral hearing loss is denied.  



REMAND

The Board notes that with regard to the claims of service connection for a heart disorder, service connection for a psychiatric disorder, an increased evaluation for panic disorder and TDIU, remand is necessary for further development.  

A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board previously remanded these issues in June 2016 to obtain VA examinations and opinions regarding whether the Veteran's heart disorder was caused or aggravated by service connected disabilities, and whether his psychiatric disorder other than panic disorder was related to service and to determine the current severity of his service connected panic disorder with agoraphobia.  

Regarding his heart disorder, remand is required for a direct service connection opinion.  The Board remanded this issue for medical opinions on whether the Veteran's current heart condition was related to his service or caused or aggravated by his service connected panic disorder and/or hypertension.  In October 2016, a VA examiner found that the Veteran's heart condition was less likely than not caused or aggravated by his service connected hypertension.  In an October 26, 2016 addendum the examiner opined that the Veteran's service connected panic disorder did not contribute to or aggravate his current heart condition.  No direct opinion, however, was obtained.  Accordingly, remand is required for a new VA opinion.  

Regarding his claims for service connection for a psychiatric disorder and an increased rating for panic disorder with agoraphobia, remand is required for clarification.  The Board requested in its remand that the examiner discuss the Veteran's prior diagnoses of anxiety neurosis, depression and bipolar disorder.  Specifically, the Board requested that if any of those diagnoses were not rendered, the examiner provide a full explanation addressing the prior diagnoses of record.  The examiner was further requested to address whether the symptoms of the service-connected and non-service-connected psychiatric disorders could be differentiated.  In an October 2016 VA examination report, the examiner discussed the Veteran's diagnoses of bipolar disorder, panic disorder and PTSD.  However, the examiner failed to provide full explanations addressing the prior diagnoses of depression and anxiety neurosis.  Therefore, remand is required for a new VA opinion for the Veteran's claims for service connection for a psychiatric disorder.  The Board notes that the claim of entitlement to an increased evaluation for panic disorder with agoraphobia is inextricably intertwined with the service connection claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other).  

With regard to the claim for entitlement to TDIU, such claim is "inextricably intertwined" with the issues of service connection and increased rating being remanded and the disposition of the TDIU claim must be deferred pending resolving this preliminary matter.  See Harris, 1 Vet. App. at 183.  Additionally, as the Veteran meets the scheduler criteria for at least part of the appeal period, a social and industrial examination should be conducted.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his attorney.  

2.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran.

3.  Once all available relevant medical records have been received, obtain an addendum medical opinion to determine the etiology of the Veteran's psychiatric disorders.  The entire claims file must be made available to and be reviewed by the examiner.  An examination shall be provided if deemed necessary.  An explanation for all opinions expressed must be provided.  

First, the examiner must specifically identify all appropriate psychiatric diagnoses other than panic disorder with agoraphobia.  If the Veteran is found to have a psychiatric disorder other than panic disorder with agoraphobia please provide an opinion as to whether it is at least as likely as not i.e., at least a 50 percent probability or greater, that each such currently diagnosed psychiatric disorder is causally related to his military service.  If anxiety neurosis, depression, and bipolar disorder are not diagnosed, a full explanation addressing the prior diagnoses of record must be provided (regardless if those diagnoses are no longer present).

4.  Once all available relevant medical records have been received, obtain an addendum medical opinion to determine the etiology of his heart disorder.  The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished.  All clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.

The examiner must provide an opinion whether the Veteran's heart disorder is at least as likely as not (50 percent or greater probability) caused or aggravated by military service.

5.  After the above development has been completed, obtain a social and industrial survey to ascertain the Veteran's employment functioning.  The claims file must be made available to the examiner.  The report from this survey must include comments on the Veteran's day-to-day functioning and the degree of social and industrial impairment which the Veteran experiences as a result of his service-connected disabilities: panic disorder with agoraphobia; lumbar spine degenerative disc disease; hypertension; tinnitus; right lower extremity radiculopathy; and burn scars.  Information must be sought from prior or recent employers regarding any work impairments and reasons for any cessation of work or quitting or firing.  The surveyor is not limited to the foregoing instructions, but the individual conducting the survey may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  The practitioner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity.  The ultimate purpose of the VA social and industrial survey is to ascertain the impact of the Veteran's service-connected disabilities on his ability to work.

6.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

7.  Ensure compliance with the directives of this remand.  If the reports are deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

8.  After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs