05-40 189

Citation Nr: 1101577 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 05-40 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for chronic hypertension claimed as the result of Agent Orange exposure. 2. Entitlement to service connection for chronic hypothyroidism claimed as the result of Agent Orange exposure. 3. Entitlement to service connection for a chronic gastric ulcer disorder. 4. Entitlement to service connection for a chronic acquired psychiatric disorder. 5. Entitlement to service connection for chronic epilepsy claimed as the result of Agent Orange exposure. (The issues of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a duodenal ulcer disorder, and service connection for a chronic skin disorder to include dermatitis claimed as the result of Agent Orange exposure and a chronic skin disorder to include post-operative left arm and lower back sebaceous cyst residuals are the subjects of a separate decision by the Board of Veterans' Appeals.) REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from May 1966 to April 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) which, in pertinent part, denied service connection for hypertension, hypothyroidism, a gastric ulcer disorder to include partial gastrectomy residuals, a psychiatric disorder, and epilepsy. In February 2008, the Board, in pertinent part, denied service connection for hypertension claimed as the result of Agent Orange exposure, hypothyroidism claimed as the result of Agent Orange exposure, a gastric ulcer, a psychiatric disorder, and epilepsy claimed as the result of Agent Orange exposure. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court granted the Parties' Joint Motion for Remand; vacated those portions of the February 2008 Board decision which denied service connection for hypertension claimed as the result of Agent Orange exposure, hypothyroidism claimed as the result of Agent Orange exposure, a gastric ulcer, a psychiatric disorder, and epilepsy claimed as the result of Agent Orange exposure; and remanded those issues to the Board for additional action. In October 2009, the Veteran appointed K. Lieberman, Attorney-atLaw, to represent him before VA. However, the representation was limited to the issues that were remanded by the Court. The Veteran proceeds without representation on the other issues that are before the Board and those issues, therefore, are the subject of a separate decision. This appeal is REMANDED to the RO. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND In August 2009, the Court granted the Parties' Joint Motion for Remand and remanded the Veteran's claims of entitlement to service connection for hypertension claimed as the result of Agent Orange exposure, hypothyroidism claimed as the result of Agent Orange exposure, a gastric ulcer, a psychiatric disorder, and epilepsy claimed as the result of Agent Orange exposure to the Board for additional action as directed by the Joint Motion. The Joint Motion conveys that all documentation of record written in Spanish should be translated and the Board should request "additional outpatient treatment records for the Appellant for the years 2000 to 2002 from the VA medical facilities located in San Juan, Puerto Rico." The Board also notes that the Veteran reported in a July 2002 statement that he was hospitalized by VA for his ulcer disability in 1976 or 1977. All documentation of record has now been translated from Spanish into English. The cited VA clinical documentation has not been requested. Therefore, the Board has no discretion and must remand the instant appeal for compliance with the Court's August 2009 Order granting the Parties' Joint Motion to Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the Parties that forms the basis of the Joint Motion to Remand). The report of the Veteran's April 1968 physical examination for service separation states that he exhibited a blood pressure reading of 142/70 and his heart, vascular system, and abdominal area were found to be normal. A May 2010 written statement from A. A., M.D., conveys that the Veteran met the criteria for Stage I hypertension at his physical examination for service separation and "his subsequent treatment records indicate fluctuating hypertensive blood pressures with inconsistent diagnosis and treatment." Dr. A. concluded that the Veteran had "hypertension when he was discharged from service and that condition has continued to this day." The VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran has not been afforded a VA examination for compensation purposes which addresses the nature and etiology of his chronic hypertension and ulcer disability. The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparent conflict in the clinical record, the Board finds that an additional VA evaluation would be helpful in resolving the issues raised by the instant appeal. Accordingly, the case is REMANDED for the following action: 1. Request copies of VA inpatient and outpatient treatment records pertaining to the Veteran that are dated in 1976 and 1977. Associate with the claims folder copies of all VA clinical documentation pertaining to the Veteran's treatment from December 31, 1999, to December 31, 2002, including that provided at the San Juan, the Commonwealth of Puerto Rico, VA medical facilities. Also associate with the claims folder VA clinical documentation pertaining to the Veteran's treatment from July 21, 2009. If no additional documentation is located, a written statement to that effect should be prepared and incorporated into the record. 2. Then schedule the Veteran for a VA examination to address the current nature and etiology of his chronic hypertension. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that the Veteran's chronic hypertension had its onset during active service or otherwise originated during active service. The examiner must provide a complete rationale for any opinion advanced. Send the claims folders to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 3. After step one is complete, schedule the Veteran for a VA examination to address the current nature and etiology of his chronic ulcer disability. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic ulcer disorder had its onset during active service; is etiologically related to the Veteran's service in the Republic of Vietnam; or otherwise originated during active service. The examiner must provide a complete rationale for any opinion advanced. Send the claims folders to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 4. Then readjudicate the Veteran's entitlement to service connection for chronic hypertension claimed as the result of Agent Orange exposure, chronic hypothyroidism claimed as the result of Agent Orange exposure, a chronic gastric ulcer disorder, a chronic acquired psychiatric disorder, and chronic epilepsy claimed as the result of Agent Orange exposure. If the benefits sought on appeal remain denied, the Veteran and his attorney should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103446, § 302, 108 Stat. 4645 , 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100 (b) (2010).