Citation Nr: 18151173 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-17 797 DATE: November 16, 2018 REMANDED The issue of entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The issue of entitlement to service connection for depression is remanded. The issue of entitlement to an increased disability rating for low back strain, currently rated as 10 percent disabling, is remanded. The issue of entitlement to an increased disability rating for PTSD, prior to November 21, 2014, currently rated as 50 percent disabling, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to November 21, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1989 to April 1990, from November 1990 to November 1991, and from July 1993 to May 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a March 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s PTSD to 100 percent disabling, effective November 21, 2014. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2015, the Veteran filed a Notice of Disagreement (NOD) as to the March 2015 rating decision. In the NOD the Veteran reported that he disagreed with “[t]he effective date awarded for the grant of 100% for post traumatic stress disorder.” The Board notes that the Veteran’s increased rating claim was received on December 1, 2009. Therefore, the relevant period on appeal for the Veteran’s claim for entitlement to a higher disability rating for PTSD is from December 2, 2008, one year prior to receipt of the claim, through November 20, 2014. See, 38 C.F.R. § 3.400 (o) (2). As such, the appeal period described by the May 2015 NOD is already being considered in the increased rating claim; therefore, a request for an earlier effective date is not a separate issue for appellate consideration. In his May 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for January 2018, but the Veteran did not attend. He has not offered good cause for his failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d) (2017). 1. Entitlement to Service Connection for Hypertension The Veteran contends that he has hypertension that is directly related to his active service or secondary to his service-connected PTSD. The Veteran was provided a VA examination as to his hypertension in April 2010. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds that the April 2010 VA examination relating to the Veteran’s hypertension is inadequate for decision making purposes. Upon examination, the VA examiner noted that the Veteran’s hypertension had its onset in January 2009. However, the VA examiner did not provide an opinion as to whether the Veteran’s hypertension is directly related to his active service. The Board notes that the Veteran has a current diagnosis of hypertension for which he is prescribed medication. The Veteran’s service treatment records do not show a diagnosis of hypertension or include blood pressure readings consistent with hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1) (2018). However, the Veteran’s service treatment records demonstrate that the Veteran had elevated blood pressure readings during his active service. For example, in November 1994, he had a reading of 148/78; in February 1995 he had a reading of 120/88; in March 1995 he had a reading of 126/90; in November 1995 he had a reading of 130/90; and in January 1996 he had a reading of 120/80. Such readings meet the criteria for prehypertension, which is defined as moderately increased blood pressure with systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89. See Dorland’s Illustrated Medical Dictionary 1510 (32nd ed. 2012). As the April 2010 VA examiner did not opine whether the Veteran’s current hypertension is directly related to his active service, the Veteran must be afforded an addendum opinion to address whether his hypertension is etiologically related to an in-service event, injury, or disease, to include the elevated blood pressure readings in his service treatment records. Additionally, the April 2010 VA examiner opined that the Veteran’s hypertension is less likely as not caused by or a result of his service-connected PTSD. As rationale, the VA examiner stated that the medical literature does not indicate that hypertension is caused by PTSD. The examiner further stated that it is possible for hypertension to be aggravated by stress, particularly at times when stress levels increase. The VA examiner therefore stated that it is possible for the Veteran’s hypertension to be intermittently, but not permanently, aggravated by his PTSD. However, the VA examiner did not provide separate findings and rationales relating to causation and aggravation. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationale. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. 2. Entitlement to Service Connection for Depression The Veteran contends that he has depression that is related to his active service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination relating to his claim for entitlement to service connection for depression. Here, the Veteran’s VA treatment records contain assessments for depression. Additionally, the Veteran’s service treatment records reflect that he was treated for depression in April 1995, during his active military service. Furthermore, the Veteran has competently and credibly stated that he has suffered from depression since the Gulf War. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 3. Entitlement to an Increased Rating for Service-Connected Low Back Strain The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a higher disability rating in excess of 10 percent for low back strain. The Veteran was last provided a VA examination relating to his low back disability in January 2010, over eight years ago. The evidence of record reflects that the Veteran’s low back disability has increased in severity. Specifically, during the November 2014 VA examination, the Veteran was wearing a back brace. Additionally, the Veteran stated that he has “new back issues.” See November 2014 VA examination. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 4. Entitlement to a Higher Rating for Service-Connected PTSD The Veteran contends that he is entitled to a rating in excess of 50 percent, prior to November 21, 2014, for his service-connected PTSD. The record reflects that the Veteran receives VA mental health treatment. The record contains VA treatment records from June 2008 through January 2014. However, the record does not contain VA treatment records from January 2014 through November 2014. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. Additionally, an April 2013 VA Social Security Administration (SSA) letter reflects that the Veteran receives SSA disability benefits related to anxiety and affective disorder. Furthermore, during the November 2014 VA examination the Veteran stated that he received SSA disability benefits due to his service-connected PTSD. VA has a duty to assist a claimant in obtaining relevant and adequately identified records. Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010). Accordingly, on remand the RO must attempt to obtain records from the SSA. 5. Entitlement to a TDIU The claim for a TDIU is inextricably intertwined with the Veteran’s claims for entitlement to higher disability ratings for low back strain and PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from January 2014. 2. Contact the SSA and request all records relating to the Veteran’s claim for disability benefits. Any negative response must be included in the claims file and the Veteran notified accordingly. 3. After the above development, forward the record and a copy of this remand to the examiner who conducted the April 2010 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during his active service or is otherwise etiologically related to the Veteran’s service, to include the blood pressure readings in the prehypertension range contained in his service treatment records. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected PTSD. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was aggravated by his service-connected disabilities, specifically to include his service-connected PTSD. “Aggravation” is defined as a worsening beyond the natural progression of the disease. Additionally, pursuant to Atencio, the VA examiner must provide separate findings and rationales as to whether the Veteran’s hypertension is caused by, or aggravated by, his service-connected disability(ies). 4. After the first two remand directives, schedule the Veteran for a VA examination to determine the nature and etiology of his depression. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any depressive disorder demonstrated since service, found on current examination or in the record. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s depression had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service, to include his April 1995 in-service treatment for depression. 5. After the first two remand directives, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected low back strain. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected low back strain. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the low back. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s low back, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 6. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for hypertension and depression may be granted and whether an increased rating for low back strain, an increased rating for PTSD, prior to November 21, 2014, and entitlement to a TDIU, prior to November 21, 2014, may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel