Citation Nr: 1824583	
Decision Date: 04/23/18    Archive Date: 05/03/18

DOCKET NO.  14-36 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for obstructive sleep apnea.
 
2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from February 1986 to November 1993. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
 
In October 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
 
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 
 
The issue of entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the October 2016 hearing, the Veteran, through his representative, requested to withdraw the issue of entitlement to service connection for obstructive sleep apnea.



CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for obstructive sleep apnea have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Dismissal

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c).

In the present case, at the October 2016 hearing, the Veteran, through his representative, withdrew from consideration the issue of entitlement to service connection for obstructive sleep apnea. Accordingly, the Board does not have jurisdiction to review the appeal on this issue, and it is dismissed.


ORDER

Entitlement to service connection for obstructive sleep apnea is dismissed.


REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim. Specifically, remand is required to receive any outstanding treatment records and to provide a VA examination. 

The Veteran seeks entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). The Board notes that it has since expanded the scope of his appeal to include a claim for secondary service connection, in part on the basis of arguments advanced.  Service connection for PTSD was granted with a30 percent rating from May 2012 to April 2017.  At that time a 70 percent rating was assigned.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b).

The Board observes that the Veteran's service treatment records reveal that his blood pressure reading was 140/86 in May 1986. Several additional readings suggest that his blood pressure fluctuated during his period of service.  

The Board further observes that the Veteran has since been diagnosed with hypertension, and he has received both VA and private treatment for this condition since at least 2012. He is also prescribed medication for his hypertension. 

In October 2016, the Veteran stated that he suffered from hypertension soon after his discharge from service and sought treatment in Mexico. He explained that he later obtained medical insurance and sought treatment in the United States. The Veteran and his representative also raised the issue of secondary service connection, as the Veteran suggested that his hypertension is aggravated by his service-connected PTSD symptoms, which include increased anger and difficulty sleeping.

The Board also acknowledges a December 2016 VA treatment report where his treating physician commented that he could not categorically determine whether the Veteran's PTSD could have triggered his hypertension. 

It does not appear that the Veteran has ever received a VA examination for his diagnosed hypertension. Therefore, the Board finds that VA's duty to assist has been triggered and it must provide VA examination for this disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).

VA should also obtain all relevant VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). According to his file, the Veteran has received VA treatment for his conditions, but there are no treatment records since June 2017. Additional blood pressure readings may be pertinent to this appeal. Therefore, the AOJ should obtain any additional relevant and appropriate VA treatment records.

Accordingly, the case is REMANDED for the following action:

1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's Virtual VA and VBMS claims file.

2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of his claimed hypertension. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.

Following a review of the full record, the examiner should respond to the following:

(a) Did the Veteran's hypertension manifest within one year of his separation from service?

(b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's hypertension had its onset in, or is otherwise related to, the Veteran's military service? 

(c) If not directly related to service, please offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's hypertension was caused by his service-connected PTSD.

(d) The examiner should then opine whether the hypertension is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected PTSD.

The examiner should provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 
The examiner should also address and reconcile any prior reports, as well as any other pertinent evidence of record, including the Veteran's fluctuating blood pressure readings documented in his service treatment records.

3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 

4. After completing any additional development deemed necessary, readjudicate the claim. If any benefit requested on appeal is not granted the Veteran and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order.

The appellant 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. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs