Filed: Jan. 13, 2011
Latest Update: Mar. 02, 2020
Summary: claimed as the result of Agent Orange exposure.Veterans' Appeals.The Veteran had active service from May 1966 to April 1968.the Board for additional action as directed by the Joint Motion.San Juan, Puerto Rico.treatment.his chronic hypertension and ulcer disability.incorporated into the record.
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-at-
Law, 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. 103-
446, § 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).
