Citation Nr: 1761191
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-28 958 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to a service-connected disability or, in the alternative, due to ins-service exposure to an herbicide agent, to include Agent Orange.

REPRESENTATION

Veteran represented by: The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Scott W. Dale, Counsel

INTRODUCTION

The Veteran served on active duty from December 1965 to November 1967, to include service in the Republic of Vietnam. He is in receipt of a Combat Infantryman Badge and a Purple Heart Medal.

This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefits sought on appeal. The Veteran expressed timely disagreement with this denial, and the present appeal ensued.

In March 2009, the Veteran presented oral testimony in support of the issue currently on appeal at a hearing at the RO conducted by e Decision Review Officer (DRO). A transcript of this hearing has been associated with the file.

In November 2013 and August 2017, the Board, among other actions, remanded the issue on appeal for further evidentiary and procedural development. The Board’s remand directives have been substantially completed, and the issue has been returned to the Board for further appellate consideration.

Characterization of an issue on appeal

The Board notes that the Veteran has not asserted that his hypertension was directly related to his service, to include his presumed in-service exposure to Agent Orange. However, in Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Court held that VA has obligation to explore all legal theories, including those unknown to the Veteran, by which he can obtain the benefit sought for the same disability. As will be further discussed below, in the January 2009 rating decision and July 2009 Statement of the Case (SOC), the RO considered whether service connection was warranted under the theory of direct service connection. As such, the Veteran’s claim has been expanded to include entitlement to service connection under the theory of direct service connection, and the issue has been recharacterized as stated on the title page. See also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.

REMAND

Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate his appeal under the applicable laws.

As noted above, although the Board’s previous two remands focused on development necessary to adjudicate the issue on appeal under the theory of secondary service connection, the matter of direct service connection must still be considered. Indeed, the RO considered the initial claim and appeal under this theory of entitlement in the January 2009 rating decision and July 2009 SOC. As stated by the RO in these adjudications, service connection for hypertension is not warranted presumptively; however, while the evidence of record reflects a current diagnosis of hypertension and presumed in-service exposure to Agent Orange, the record does not include any opinion concerning a possible nexus under the theory of direct service connection, as required by the controlling laws. See 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange).

In light of above, the Board concludes that the issue on appeal must be remanded so that the AOJ can request an opinion concerning whether the Veteran’s hypertension is due to any incident of his service, to include his presumed in-service exposure to Agent Orange.

Accordingly, the case is REMANDED for the following actions:

1. The AOJ must return the Veteran’s electronic file to the clinician who offered the August 2017 opinion, if available. After another review of the file, the VA clinician must provide an opinion concerning whether the Veteran’s hypertension is at least as likely as not (50 percent probability or better) proximately due to or the result of any incident of the Veteran’s service, to include his presumed in-service exposure to herbicide agents, to include Agent Orange.

*If the clinician who provided the August 2017 VA opinion is unavailable, the AOJ must arrange for another equally-qualified clinician to address the above. If further examination is deemed necessary, such should be requested and scheduled, and the Veteran must be made aware of the proper time and place to report.

2. Thereafter, the AOJ must readjudicate the Veteran’s appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, a Supplemental Statement of the Case (SSOC) should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment. The law requires that all appeals that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2017).

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