Citation Nr: 20005000 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 15-17 579 DATE: January 22, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. Entitlement to a disability rating in excess of 10 percent for chronic lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1989 to November 1989, and in the United States Navy from May 1991 to June 1997. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in a November 2018 video conference hearing. A transcript of that hearing has been associated with the claims file. 1. Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to enable the Agency of Original Jurisdiction (AOJ) to perform additional development. First, a remand is warranted as the evidence reflects that there may be relevant VA records not associated with the claims file. Specifically, in December 2018, the Veteran submitted excerpts from his VA records, including an excerpt dated November 2018. However, to date, only VA records through August 2017 have only been associated with the electronic claims file. As such, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran’s complete VA records from August 2017 to present. Second, a remand is warranted as the evidence indicates that there may be pertinent private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the Veteran has submitted excerpts of medical records relating to his treatment for hypertension at Baptist Primary Care – Mandarin West. Notably, an excerpt from December 2018 states that the Veteran was advised to keep a blood pressure log and followup in 12 weeks for reassessment. However, no records relating to treatment after December 2018 have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent private medical records. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Third, a remand is necessary to obtain clarification with regards to certain medical records. The Veteran’s self-documented blood pressure readings indicate that he may have experienced elevated blood pressure levels with diastolic readings frequently in excess of 120, beginning in July 2018. See Home Blood Pressure Monitoring Logbooks. However, during that same period, the Veteran’s private medical records contain blood pressure readings, performed by medical professionals that are substantially different than those recorded by the Veteran for that day. See id; Jacksonville Pain Center records. For example, on the morning of October 23, 2018, the Veteran’s private physician recorded the Veteran’s blood pressure as 150/98. October 2018, Jacksonville Pain Center. On the same date, the Veteran recorded his morning blood pressure as 156/122, and his nighttime blood pressure as 159/129. Home Blood Pressure Monitoring Logbooks. As such, a remand is necessary to allow a VA examiner to address the different blood pressure readings to provide sufficient information to appropriately rate the Veteran. Fourth, a remand is necessary to provide the Veteran with a VA examination to determine the current severity of his service-connected hypertension. As discussed above, the Veteran’s self-documented blood pressure readings indicate that he may have experienced elevated blood pressure levels beginning in July 2018. See id. The last such reading that is of record is from November 14, 2018, which noted readings of 160/134 and 165/133. Id. Further, the last blood pressure readings of record that were performed by a medical professional are from December 3, 2018, which noted readings of 156/104, 158/108, and 162/112. December 2018, Baptist Primary Care – Mandarin West. In other words, the medical records that have been associated with the claims file appear to suggest that a staged rating may be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Based on the aforementioned, it is unclear whether the December 2018 blood pressure readings are indicative of the current level of severity, particularly as the records indicate that the Veterans blood pressure medications were adjusted on such date. See December 2018, Baptist Primary Care – Mandarin West. As such, a remand is necessary to provide the Veteran with a VA examination to determine the current severity of his service-connected hypertension. In sum, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran’s VA and private medical records, and to provide the Veteran with a VA examination for the purpose of clarifying certain medical records and determining the current severity of the Veteran’s service-connected hypertension. 2. Entitlement to a rating in excess of 10 percent for chronic lumbar strain is remanded. The Board has reviewed the record and finds that a remand is necessary to enable the AOJ to conduct additional development. First, a remand is warranted as the evidence reflects that there may be relevant private medical records not associated with the claims file. Specifically, the Veteran has submitted an excerpt from a Family Medical Leave Act (FMLA) request, in which the Veteran’s healthcare provider noted that, due to flare-ups of the Veteran’s lower back condition, the Veteran may need to be absent from work five times per month, one day per flare-up, from August 13, 2018, to January 7, 2019. See August 2018 FMLA Request. However, no records relating to treatment of the Veteran’s chronic lumbar strain have been associated with the claims file since December 2018. As a result, it is unclear whether the reported flare-ups subsided in January 2019, or if the Veteran has continued to receive treatment and experience incapacitating episodes thereafter. As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent private medical records. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, in the November 2018 Board hearing, it was asserted that the severity of the Veteran’s chronic lumbar strain had worsened since his last VA examination in March 2015. In support of this assertion, the Veteran reported that his ability to move (i.e. ROM) has worsened to the point where he is unable to participate in many activities, including going out to dinner. See November 2018 VA Board Hearing Transcript. Based on the Veteran’s statements as to the increase in severity of his service-connected chronic lumbar strain, a new VA examination is needed to ascertain the current severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In sum, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran’s private medical records and to provide the Veteran with a VA examination to determine the current severity of the Veteran’s service-connected chronic lumbar strain. The Board acknowledges that the Veteran has submitted a statement from a private physician noting that, in a May 2015 range of motion (ROM) study, the Veteran was found to have a combined ROM of 63 degrees, with forward flexion of 23 degrees, extension of 6 degrees, right lateral flexion of 9 degrees, left lateral flexion of 13 degrees, left rotation of 3 degrees, and right rotation of 9 degrees. See May 2015, Dr. P. J. Opachich. However, there is no indication as to whether or not the ROM study was conducted during a flare-up, whether ROM was tested following repetitive use, or whether the physician considered physical indications of pain when documenting the ROM. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011) (holding that VA has a duty to seek clarification from private medical examiners where “the missing information is relevant, factual, and objective”). As such, clarification of this decision is warranted. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the Veteran’s electronic claims file all outstanding VA records from August 2017 to current, as well as all pertinent private treatment records, including records from Baptist Primary Care – Mandarin West and Jacksonville Pain Center. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. After completing the above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician, other than K.S. Horn, and preferably a cardiologist, to determine the current severity of his service-connected hypertension. The entire claims file should be provided to and reviewed by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. The examiner is instructed to: (a.) Obtain the Veteran’s lay history regarding symptomatology. (b.) Determine the current severity of the Veteran’s service-connected hypertension, as represented by the Veteran’s currently predominate diastolic and systolic pressures. (c.) To the extent possible, determine and discuss the Veteran’s predominate diastolic and systolic pressures since November 2010. (d.) Discuss any differences between the Veteran’s self-documented blood pressure readings and blood pressure readings performed by medical professionals, including readings dated September 18, 2018 and October 23, 2018. To the extent possible, opine as to the cause of any such differences, as well as to whether any such differences affect the competency of either recorded reading. (e.) Identify all residuals attributable to the Veteran’s service-connected hypertension. (f.) Address any impacts the Veteran’s service-connected hypertension has on his daily life and occupational activities. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Contact the Veteran and request a release to contact the Veteran’s private physician, Dr. P. J. Opachich, to request clarification of whether or not the ROM study conducted in May 2015 was conducted during a flare-up, whether ROM was tested following repetitive use, or whether the physician considered physical indications of pain when documenting the ROM 4. After completing the development outlined in Section 1 above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician, other than K.S. Horn, to determine the current severity of his service-connected chronic lumbar strain. The entire claims file should be provided to and reviewed by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. The examiner is instructed to: (a.) Obtain the Veteran’s lay history regarding symptomatology. (b.) Test and document the ROM for the thoracolumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidenced by the Veteran’s visible behavior. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss. (d.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected chronic lumbar strain, including any neurological manifestations. The extent of any weakened movement, excess fatigability, and incoordination on use should be described. Any additional impairment due to weakened movement, excess fatigability, or incoordination should be assessed in terms of the degree of additional ROM loss. (e.) Discuss the March 2015 VA examination and May 2015 private examination. To the extent possible, opine as to the cause of the difference in ROM findings. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. (Continued on the next page)   5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.