Citation Nr: 21076764 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-43 410 DATE: December 27, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for heart disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In March 2019, July 2020, February 2021, June 2021, and September 2021, the Board remanded the case to the RO for additional development. The Board notes that the hypertension and heart claims were filed and appealed to the Board under the prior system, also known as the Legacy Appeals System. In May 2020, the RO did not reopen a claim for service connection for a left wrist disability. The May 2020 rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In October 2020, the Veteran filed a VA Form 10182 notice of disagreement to the May 2020 rating decision. Under the AMA system, that is considered a separate appeal from the current legacy appeal with its own docket number. As such, no action will be taken by the Board at this time. The Board notes in the October 2020 VA Form 19182 notice of disagreement, the Veteran elected the hearing option. In January 2021 the Board acknowledged the notice of disagreement for the left wrist claim. The hearing request remains pending. Entitlement to service connection for hypertension is remanded. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection. The Board, however, has been frustrated in its efforts to obtain an adequate record to reach a decision by the VA examiners' lack of compliance with the Board's remand directives. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board's prior remands directed new VA examinations with opinions and rationale that will allow the Board's decision to be a fully informed one. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Once again, however, despite detailed remand instructions, the Board is prevented from its decision because the latest VA examinations do not provide sufficient rationale for the Board to rely upon for a decision. The Board has been remanding the Veteran's claims requesting an opinion that explains whether the Veteran's current hypertension is related to or first manifested in service because the Veteran's service treatment records show elevated blood pressure readings. The October 2021 VA examiner merely stated that the Veteran's hypertension is less likely than not related to service because it was not diagnosed in service. The examiner then cut and pasted the rationale offered by the November 2020 VA examiner's opinion. The Board has already found the November 2020 opinion did not allow the Board to make a fully informed decision. D'Aries, supra. Further, the Board points out that the absence of a disability in service treatment records alone does not preclude service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Therefore, the Board has determined that a new VA examination is needed to address the Veteran's claims and a remand is required. Ongoing medical treatment records should also be obtained. 1. Entitlement to service connection for heart disease is remanded. As for the Veteran's claim for service connection for heart disease, he asserts it is caused or aggravated by hypertension. The Board finds that this claim is inextricably intertwined with the Veteran's hypertension claim and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension and heart disease claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether hypertension is at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to an in-service injury, event, or disease, to include elevated blood pressure readings recorded during service including the separation examination. The examination should address: is it at least as likely as not that the Veteran's hypertension (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In offering the opinion, the examiner is asked to consider and discuss the following facts: (a). At the April 1984 entrance examination, the Veteran had a blood pressure reading of 134/86. (b). during service, his blood pressure readings varied from 138/110 (April 1986) to 101/60 (May 1987). (c). At his September 1991 separation examination, the Veteran had a blood pressure reading of 130/98. He then underwent a 3-day blood pressure check with an average reading of 130/88. During this check, the Veteran had a blood pressure reading as high as 144/98. (d). Ultimately, his service clinicians determined his blood pressure did not disqualify him from a normal separation but advised the Veteran about hypertension and the need for a low salt diet. (e). The earliest post- service blood pressure reading, 132/86, occurred in a January 1993 orthopedic VA examination. (f). The Veteran was diagnosed with hypertension in July 2005. (g). The Veteran has testified that on several occasions, after taking an initial blood pressure reading, the service clinicians would take repeated blood pressure readings after making him sit for a while. He also testified he felt blood pressure symptoms while in service and after separation but did not seek medical attention because he did not think anything was wrong with himself. The examiner is asked to explicitly state whether the Veteran had a diagnosis of hypertension during active duty, to include based on blood pressure readings taken during his September 1991 separation evaluation. The examiner must also discuss the January 1993 VA examination results of elevated blood pressure readings in the rationale portion of the opinion. If the examiner concludes that the Veteran did not have symptoms that constituted a diagnosis of hypertension during active service, the examiner is directed to discuss whether the Veteran's elevated blood pressure readings and diagnosis constituted pre-hypertension or any other chronic condition. VA regulations define hypertension as diastolic blood pressure predominantly 90 mm. or greater and isolated systolic blood hypertension as predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes and acknowledges that the Veteran does not have a diagnosis of hypertension during service. At issue, instead, is whether the Veteran's elevated blood pressure readings both during service and shortly after service would constitute a diagnosis of hypertension. The Board also notes that these readings appear to reflect Stage 1 hypertension as defined by the American Heart Association. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current heart disability had its onset during service or is otherwise related to an in-service injury, event, or disease. the examiner should provide opinions on the following: (a.) Whether it is at least as likely as not (50 percent or greater) that any heart disease began during active service, manifested within one year of discharge from active service, was noted during service with continuity of the same symptomatology since active service, or is related to an in-service injury, event, or disease. (b.) If the examiner determines that the Veteran's hypertension is related to service, whether the Veteran's heart disease is at least as likely as not (50 percent or greater) proximately due to his hypertension or aggravated beyond natural progression by his hypertension. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.