Citation Nr: A25035005 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240903-470441 DATE: April 16, 2025 REMANDED Entitlement to an initial compensable rating for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to September 1971. He served in the Republic of Vietnam from July 1970 to September 1971, and his awards and decorations include the Combat Infantryman Badge. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from a September 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, known as the agency of original jurisdiction (AOJ). As such, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Further, the Board notes that in the September 2024 VA Form 10182, the Veteran identified the rating decision on appeal as the September 14, 2023, rating decision. However, the record does not include a September 14, 2023, rating decision, but instead a September 13, 2023, rating decision (with notification to the Veteran on September 15, 2023), which granted service connection for hypertension. Reading the VA Form 10182 in the light most favorable to the Veteran, the Board has construed his request to appeal the September 14, 2023, rating decision as a request to appeal the September 13, 2023, rating decision (with notification to the Veteran on September 15, 2023). Additionally, in the September 2024 VA Form 10182, the Veteran specifically reflected disagreement with the initial rating assigned for hypertension, stating the specific issue at appeal is "contesting 0% disability rating and 0% compensation." Accordingly, this appeal is limited to the rating for hypertension and does not encompass a claim for an earlier effective date for the grant of service connection for hypertension. As a final initial matter, in the September 2024 VA Form 10182, the Veteran identified that he disagreed with the September 5, 2023, Board decision denial of a compensable rating prior to October 28, 2020, and in excess of 20 percent after October 28, 2020, for bilateral hearing loss, as well as the underlying November 2, 2020, AOJ rating decision. However, there is no valid appeal with respect to hearing loss. A Board Appeal (VA Form 10182) is not a valid method to appeal the September 5, 2023, Board decision. See Bissonnette v. Principi, 18 Vet. App. 105, 112 (2004) ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three."). Moreover, although the record does not include a November 2, 2020, rating decision, it does include an October 29, 2020, rating decision (with notification to the Veteran on November 3, 2020), which increased the evaluation of the Veteran's bilateral hearing to 20 percent effective October 28, 2020. However, the October 2020 rating decision was subsumed by the September 2023 Board decision. Entitlement to an initial compensable rating for hypertension is remanded. In this case, the Veteran argues a higher initial rating is warranted for his hypertension. See September 2024 VA Form 10182. The Board finds a remand is necessary to correct a pre-decisional duty to assist error. Under the AMA, the Board has a duty to remand issues when necessary to correct a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). Specifically, May 2022 Houston VA Medical Center treatment records note that the Veteran has been seeing his primary care provider, Camille Goff, M.D., for his hypertension. Additionally, during the July 2018 hearing with a Decision Review Officer, the Veteran also indicated he was receiving care from a primary care provider and his cardiologist, including from providers within the same practice once his former cardiologist retired in approximately 2016. However, the record does not document that, prior to the rating decision on appeal, the AOJ attempted to obtain the identified records. While the Veteran submitted treatment records, dated March 7, 2011, August 29, 2013, and September 29, 2016, from Dr. Goff, no additional treatment notes are found in the record from this provider. See Medical Treatment Records submitted May 2017 and November 2019. A 10 percent rating for hypertension may be awarded as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. Therefore, the Veteran's historical hypertension readings are relevant to this appeal. Thus, the Board finds a remand is necessary to correct this pre-decisional duty to assist error to allow VA to obtain authorization and request these identified private medical records. The Board advises that, at this time, it intimates no opinion as to the credibility or probative value of any lay statements in relation to the Veteran's claim and defers any competency or credibility determinations until final adjudication of this claim. The matter is REMANDED for the following action: Send the Veteran VA Forms 21-4142 and 21-4142a to obtain the authorization and information needed to request the private treatment records relevant to hypertension identified below. The Veteran should also be advised that he may associate the records with his VA benefits file himself. a) All treatment records relevant to hypertension from Camille Goff, M.D.; and b) All treatment records relevant to hypertension from the Veteran's cardiology group. Make two requests for the authorized records from any adequately identified medical provider, unless it is clear after the first request that a second request would be futile. The Veteran is advised that in completing the VA Form 21-4142a, he must adequately identify each medical provider (including providing a complete address) in order for VA to make a request for any records on his behalf. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Black, 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.