Citation Nr: 18146835 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 10-06 778 DATE: November 1, 2018 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected asbestosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1965 to December 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is of record. The Board remanded the case for further development in February 2013 and October 2013. Thereafter, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA) in April 2014. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903 (2017). In December 2014, the Veteran’s representative submitted responsive evidence and requested return of the case to the agency of original jurisdiction (AOJ) for initial consideration and for additional time to submit evidence. Accordingly, the Board remanded the case in January 2015 for review. The requested development was completed, and the case was returned to the Board for appellate review. In a December 2016 decision, the Board denied the claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 memorandum decision, the Court vacated the Board’s decision and remanded the issue. The Veteran is now represented by the above-named recognized service organization, and a VA Form 21-22 is of record. On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s claim. Specifically, it appears that there may be outstanding, relevant VA and private treatment records since return of the case from the Court, as detailed in the directives below. In addition, the Court determined in its memorandum decision that the Board’s conclusion that the December 2013 VA opinion and August 2014 VHA opinion were adequate medical evidence was clearly erroneous, given that the examiners did not adequately support their opinions and conducted an incomplete record review. As such, an additional VA medical opinion is needed. The case is REMANDED for the following actions: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hypertension. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The claims file does contain records of non-VA treatment dated to early 2015, including from the Veteran’s private pulmonary doctor (submitted in support of this appeal); however, he will have an opportunity to provide or request that VA attempt to obtain more recent records while the case is on remand. The AOJ should also secure any outstanding VA treatment records, including any records dated between March 2015 and October 2016, prior to the Veteran transferring his care to the Las Vegas VA Medical Center. 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran’s hypertension. An examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. A detailed factual history of this appeal is provided in the April 2014 VHA request/Board’s December 2016 decision. The Court’s April 2018 memorandum decision details the insufficiencies that it found in the December 2013 VA and August 2014 VHA medical opinions upon which the Board based its prior decision (including a determination that the complete history of the development of the Veteran’s hypertension was not reviewed) – necessitating this addition opinion request. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current hypertension was caused or aggravated by his service-connected asbestosis. In providing this opinion, the examiner should address: (1) the Veteran’s theories regarding aggravation of his hypertension by his asbestosis, i.e., breathing difficulties (dyspnea on exertion) and claimed increase in hypertension medications due to an increase in the severity of his asbestosis. The Veteran’s medication history is documented in the treatment records (as referenced in the April 2014 VHA request/Board’s December 2016 decision and VA treatment records since that time) and the December 2013 VA opinion report. (2) the medical significance, if any, of a January 2012 VA treatment record noting review of a pulmonary clinic consultation record from the month prior indicating that dyspnea was “suspect sec[ondary] to restrictive disease given normal cardiac screening and lack o[f] response to inhaled bronchodilators. Asbestos pleuropulmonary disease.” The December 2011 record itself indicates that an echocardiogram previously performed was unremarkable with no evidence of pulmonary hypertension. See VA treatment records in February 2015 VBMS entries. In providing this opinion, the discussion should include consideration of the finding that there was a lack of response to inhaled bronchodilators. See also, e.g., December 2014 CT scan and January 2015 treatment record from Kingman Regional Medical Center (noted pulmonary function continued to demonstrate restrictive and obstructive disease pattern under chronic obstructive pulmonary disease (COPD) assessment (March 2015 VBMS entry); January 2018 VA respiratory examination report (pulmonary function test results suggesting some level of response to bronchodilators). (3) the medical significance, if any, of the remaining findings in the December 2014 CT scan from Kingman Regional Medical Center documenting the status of the asbestosis and advanced emphysema/COPD at that time. (4) the more recent treatment records documenting the Veteran’s medical status including: (a) the November 2017 VA chest x-ray with hyperinflation suggesting COPD; (b) the December 2017 VA anesthesiology note showing that the Veteran was currently being assessed for home oxygen due to “asbestos” and obstructive sleep apnea (OSA) with room air saturation of 95 percent that day; (c) ongoing hypertension medication (all January 2018 VBMS entry); and (d) the complete January 2018 VA respiratory examination report for a separate asbestosis claim only considering that disorder. (5) If the examiner is unable to distinguish between the symptoms associated with the service-connected asbestosis and any symptoms associated with a nonservice-connected disorder, to include COPD and OSA, he or she should state so in the report and provide an explanation. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel