Citation Nr: 1808099 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 607A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial, compensable rating for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel INTRODUCTION The Veteran is a Peacetime and a Gulf War Era Veteran who served on active duty in the Army from May 1988 to July 1988, from February 2003 to January 2004, from October 2005 to December 2006, from June 2007 to July 2008 and from October 2008 to September 2009. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2013 rating decision in which the RO, inter alia, granted service connection hypertension and assigned a 0 percent (noncompensable) rating, effective March 8, 2011. In June 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2014, and, in June 2014, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In April 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran was represented at the hearing by a service officer from Veterans of Foreign Wars of the United States (VFW), the Veteran's accredited representative. [Parenthetically, the Board notes that the cover sheet of the hearing transcript incorrectly identifies the Idaho State Service Office as the representative; however, VA acknowledges VFW as the representative of record.]. Because the appeal involves disagreement with the initial rating assigned following the award of service connection for hypertension, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Legacy Content Manager (Virtual VA) claims processing systems. The Legacy Content Manager file contains VA treatment records which are not included in the VBMS file. All records have been reviewed. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. The Veteran was last afforded a VA examination for evaluation of his service-connected hypertension in May 2013. However, during the April 2017 hearing, the Veteran testified that his condition had worsened. In this regard, the Veteran reported that he has had his medication adjusted many times over the years as his hypertension increased in severity. As the Veteran's condition may have worsened, re-examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claim file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Westside Chicago VA Medical Center (VAMC), and that records from this facility through October 2016 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from Westside Chicago VAMC and any associated facility(ies) all pertinent, outstanding treatment records of the Veteran dated since October 2016, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly, as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. §5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Therefore, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103,52103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the higher rating claim should include consideration of whether "staged" rating of the disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson, supra, is warranted. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Westside Chicago VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since October 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate medical professional, for evaluation of his service-connected hypertension. The contents of the entire, electronic claims file (in VBMS and Legacy Content Manger (Virtual VA)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran's documented history and lay assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render all appropriate findings needed to evaluate the Veteran's hypertension under applicable rating criteria. In particular, following examination and testing of the Veteran and review of his prior medical history, the examiner should indicate whether the Veteran's diastolic pressure is predominately 130 or more, 120 or more, 110 or more, or 100 or more. The examiner should also indicate whether the Veteran's systolic pressure is predominately 200 or more, or 160 or more. The examiner should also measure and record all objective and subjective symptoms associated with the Veteran's hypertension, and comment on the functional effects of the disability on the Veteran's activities living, to include employment. Also, based on review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since the March 2011 effective date of the award of service connection, the Veteran's hypertension has changed in severity, and, if so, the approximate date(s) of any such change(s), and comment as to the extent of severity of the disability on each date.. All examination findings/testing results, along with completely, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Legacy Content Manager(Virtual VA) file(s) since the last adjudication of the claim) and legal authority (to include consideration of whether staged rating of the disability is warranted) . 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).