Veteranclaims’s Blog

May 5, 2014

Single Judge Application, cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013); Recent Diagnosis Must be Considered

Excerpt from decision below:

“The requirement that a claimant have a current disability before service connection may be granted “is satisfied when a claimant has a disability at the time a claim for VA disability
compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet.App.
319, 321 (2007); cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013) (the Board must consider evidence of a “recent” diagnosis made prior to the filing of a claim).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0905
FELIPE CARTAGENA-VAZQUEZ, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Felipe Cartagena-Vazquez appeals through counsel a
March 7,
2013, Board of Veterans’ Appeals (Board) decision denying service
connection for (1) an acquired
psychiatric disorder, to include post-traumatic stress disorder (PTSD) and
depressive disorder; and
(2) arterial hypertension, to include as secondary to exposure to
herbicides or type II diabetes
mellitus. Record (R.) at 3-29.1
This appeal is timely and the Court has jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-
judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the reasons
that follow, the Court will set aside the appealed portions of the March
2013 Board decision and
remand those matters for further development, if necessary, and
readjudication consistent with this
decision.
The Board also denied service connection for type II diabetes mellitus
secondary to exposure to herbicides.
R. at 23-28. Because Mr. Cartagena-Vazquez makes no argument with respect
to that claim, the Court will not address
it. See DeLisio v. Shinseki, 25 Vet.App. 45, 47 (2011) (Court’s
disposition of case addressed only those portions of the
Board decision argued on appeal).
1

I. FACTS
Mr. Cartagena-Vazquez served on active duty in the U.S. Army from June
1969 to June
1971, including service in Vietnam. R. at 1102-03. He also served for 22
years in the Army
National Guard. R. at 868, 913-14, 945-46. National Guard medical records
indicate that in October
2000 he was treated for high blood pressure (R. at 1039), and in November
2000 he was taking
medication for hypertension (R. at 1086).
In September 2005, Mr. Cartagena-Vazquez sought VA treatment for
depression and was
screened as positive for PTSD. R. at 917. Later that month, he was seen at
a VA mental health
clinic and complained of depression, lack of interest, insomnia, frequent
crying spells, suicidal
ideation, poor appetite, and intrusive memories and flashbacks of combat
experiences in Vietnam.
R. at 913. A VA psychiatrist performed a mental status examination and,
under the heading “Initial
DSM-IV Diagnosis,”2
listed “Anxiety Disorder: PTSD, chronic, NOS (Not Otherwise Specified),”
and “Depressive Disorder: Major Depression, NOS.” R. at 915.
In March 2006, Mr. Cartagena-Vazquez filed a claim for service connection
for, inter alia,
a nervous condition and hypertension. R. at 971-84. In June 2006, he
submitted an untranslated
certificate of psychiatric treatment prepared by his private physician, Dr.
Margarita Vargas López.
R. at 925. That document, which was translated in March 2011, stated that
Dr. Vargas López had
treated the veteran since March 2006 and had diagnosed PTSD and severe
major depression. R. at
187-90. Mr. Cartagena-Vazquez also submitted a VA Form 21-4142 authorizing
VA to obtain
additional medical records from Dr. Vargas López. R. at 923-24.
In June 2006, Mr. Cartagena-Vazquez underwent a VA hypertension
examination and was
diagnosed with arterial hypertension. R. at 933. The examiner noted that
the veteran was first
diagnosed with hypertension at some point in 2000. R. at 932.
InJuly2006,Mr.Cartagena-VazquezhadanotherpositivePTSD screening. R. at1848.
Yet,
at a January 2007 VA PTSD examination, the veteran did not report any
stressors that he found
“particularly traumatic” and the examiner concluded that he did not meet
the DSM-IV criteria for
2
DSM-IV is a common abbreviation for the Diagnostic and Statistical Manual
of Mental Disorders, Fourth
Edition.
2

diagnosing PTSD. R. at 871, 875. Instead, the examiner diagnosed only
depressive disorder, NOS.
R. at 875.
In February 2007, a VA regional office denied service connection for PTSD,
depressive
disorder, and hypertension, among other conditions. R. at 853-59. Mr.
Cartagena-Vazquez filed a
timely Notice of Disagreement as to that decision (R. at 850) and
subsequently perfected his appeal
to the Board (R. at 821-22).
In the meantime, Dr. Vargas López sent the Social SecurityAdministration
a summaryof the
psychiatric treatment that she had provided to Mr. Cartagena-Vazquez. R.
at 563-67. The summary
included the following notation: “Diagnosis (DSM III or IV): (1) Major
Depression Severe with
Psychotic features, (2) PTSD.” R. at 567.
While his claim was pendingbefore the Board, Mr. Cartagena-Vazquez
continued to receive
psychiatric treatment from VA. Relevant to this appeal, in April 2007, a
VA psychologist indicated
that the veteran “described several incidents in [Vietnam] in which his
life was threatened and in
which he saw atrocities that still bother him.” R. at 805. The “initial
DSM-IV diagnosis” was PTSD,
and the psychologist opined: “[The veteran] seems to have had PTSD and
alcohol abuse problems
upon his return from [Vietnam]. He was able to deal[] with his problems
and become [employed]
and stay employed for 30 years. Upon retirement and military activation of
his son to go to Iraq,
PTSD in the [patient] also appears to have reactivated.” R. at 807 (
capitalization altered). VA
treatment notes from June, October, and December 2007 also indicate that
the veteran “continues
with depression and anxiety related to experiences in [Vietnam].” R. at
801, 1704, 1709.
In April 2012, the Board remanded Mr. Cartagena-Vazquez’s claims for
service connection
for hypertension and an acquired psychiatric disorder, to include PTSD and
depressive disorder. R.
at 175-86. The Board found that additional VA medical examinations were
necessary because the
June 2006 VA hypertension and January 2007 PTSD examinations did not
contain opinions as to
the etiology of those conditions. R. at 179. The Board also found that “VA
outpatient records
indicate the [v]eteran has been diagnosed with chronic PTSD (see September
2005 VA outpatient
note),” major depressive disorder, and depressive disorder, and the Board
noted that, during the
pendency of the appeal, the regulations governing service connection for
PTSD had been amended.
R. at 177-78. Accordingly, the Board ordered further development of those
claims, including to
3

“[p]rovide the [v]eteran with notice of the amended PTSD regulations and
the new requirements for
substantiating a claim for PTSD,” to “[o]btain and associate with the
claims file any updated VA
treatment records,” and to provide him with VA psychiatric and
hypertension examinations. R. at
180-85.
Later in April 2012, the Appeals Management Center (AMC) sent Mr.
Cartagena-Vazquez
a letter, which informed him of the general requirements for establishing
service connection for
PTSD but did not discuss the amendments to 38 C.F.R. § 3.304(f)(3),
including the addition of a
provision regarding PTSD based on fear of hostile military or terrorist
activity. See R. at 167-74.
Thenext month,Mr.Cartagena-
VazquezunderwenttheorderedVApsychiatricexamination.
R. at 131-46. In response to the question “Does the [v]eteran have a
diagnosis of PTSD that
conforms to DSM-IV criteria based on today’s evaluation?”, the examiner
marked the box for “Yes.”
R. at 131. The examiner also left blank all of the boxes following the
instruction, “If no diagnosis
of PTSD, check all that apply.” Id. However, the only Axis I diagnosis3
the examiner listed under
the section entitled “Current Diagnoses” was major depressive disorder (R.
at 132), apparently
because the veteran did not display three or more indicators of persistent
avoidance of stimuli
associated with the trauma and numbing of general responsiveness (DSM-IV
criterion C for
diagnosing PTSD) and two or more persistent symptoms of increased arousal (
DSM-IV criterion D
for diagnosing PTSD) (R. at 138). The examiner opined that the veteran’s
major depressive disorder
was less likely than not incurred in or caused by service because:
There is no temporal association between Major Depressive onset and
military
stressors. Veteran sought formal psychiatric treatment in 2006, almost
thirty years
after discharge from active dutyin 1971. Furthermore, there is no evidence
of mental
symptoms causing social or occupational impairment throughout the years
after his
return from the Vietnam war. He was able to hold a stable family nucleus
and
employment until he retired . . . after being eligible [for retirement]
for duration of
work in 2000.
R. at 144.
The DSM–IV uses a multiaxial system for classifying mental disorders.
See DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 27-36 (4th ed., text revision 2000). Axis I
refers to clinical disorders and other
conditions that may be a focus of clinical attention. Id. at 27-28.
3
4

Also in May 2012, Mr. Cartagena-Vazquez underwent a VA hypertension
examination. R.
at 85-88, 147-49. The examiner noted that the veteran was diagnosed with
hypertension in 1998 or
1999, had been taking oral medication for that condition ever since, and
was currently “being
followed by a private cardiologist who has continued his treatment.” R. at
147-48; see also R. at
773-75(September2007blood pressuretest resultsordered byprivate physician
Ralph C. Conaway-
Lanuza); R. at 790, 808, 867 (VA treatment notes indicating that a private
physician was treating the
veteran for hypertension). The examiner opined that hypertension was less
likely than not incurred
in or caused by service because the veteran developed hypertension many
years after service and
“[a]ll the blood pressure readings taken during service [were] normal.” R.
at 86.
In March 2013, the Board issued the decision currently on appeal. R. at 3-
29. As an initial
matter, the Board found that VA had satisfied its duties to notify and to
assist the veteran and no
further action was required before adjudicating the appeal. R. at 4, 6-8.
Turning to the merits of the
claims, the Board found that the record did not contain a diagnosis of
PTSD that complied with the
DSM-IV because none of the private or VA medical records diagnosing PTSD
were “supported by
any actual recordation of test results or indications that the DSM-IV
criteria were in fact[] applied
and met.” R. at 14. The Board emphasized that the January 2007 and May
2012 VA medical
examiners “utilized and applied” the DSM-IV criteria and determined that a
diagnosis of PTSD was
not warranted. R. at 15. The Board also noted that “no psychiatric
disorder diagnosed post-service,
to includedepression, hasbeenetiologicallylinkedto the[v]eteran’s
periodofserviceoranyincident
therein,” highlighting the May 2012 negative linkage opinion. R. at 16-17.
The Board therefore
denied service connection for an acquired psychiatric disorder, to include
PTSD and depressive
disorder. R. at 15-16, 18-19.
Regarding hypertension, the Board found that the record did not contain
evidence of
hypertension in service or manifestation to a compensable degree within
one year of separation from
service. R. at 24-25. The Board also determined that there was no
competent evidence providing
linkage between hypertension and service and denied the veteran’s claim
for service connection for
hypertension. R. at 25-26, 29. This appeal followed.
5

II. ANALYSIS
A. Service Connection for an Acquired Psychiatric Disorder
Mr. Cartagena-Vazquez argues that the Board clearly erred in finding that
the record does
not contain a current diagnosis of PTSD that complies with the DSM-IV, or,
in the alternative, that
the Board provided inadequate reasons or bases to support that finding.
Appellant’s Brief (Br.) at
7-15. He also contends that the Board provided inadequate reasons or bases
for its finding that VA
satisfied its duties to notify and to assist because VA did not provide
the veteran with adequate
notice of the amendments to § 3.304(f) in accordance with the April 2012
Board remand order, did
not attemptto obtain the private medical records from Dr. VargasLópez,
andprovidedaninadequate
VA psychiatric examination in May 2012. Id. at 15-18, 20-25.
The Secretary concedes that remand of the claim for service connection for
an acquired
psychiatric disorder is warranted because the Board did not address the
April 2007 VA psychology
note reflecting an initial DSM-IV diagnosis of PTSD or the June, October,
and December 2007 VA
psychology notes indicating a relationship between depressive disorder and
service. Secretary’s Br.
at 9-11, 14-15. However, the Secretary asserts that the May 2012 VA
psychiatric examination was
adequate (id. at 11-14) and, although “it does not appear that VA
requested . . . treatment records
from Dr. [Vargas] López or provide notice to [the veteran] with respect [
to] attempts to obtain these
records,”that error is harmless because the record contains a summaryof
her treatment of theveteran
(id. at 17). It does not appear that the Secretary responded to the
veteran’s notice argument.
In his reply brief, Mr. Cartagena-Vazquez argues that the Court should
reverse, not remand,
the Board’s finding that the record does not contain a PTSD diagnosis made
in accordance with the
DSM-IV criteria. Reply Br. at 1-2. He also asserts that, to the extent
that the Secretary failed to
respond to his specific arguments regarding the adequacy of the May 2012
VA psychiatric
examination and the AMC’s April 2012 notice letter, those issues should be
deemed conceded and
resolved in his favor. Id. at 5-7 (citing MacWhorter v. Derwinski, 2 Vet.
App. 655, 656 (1992)
(“[T]he Court has the authority to deem the Secretary’s failure to file an
appropriate response a
concession of error.”)). The Court will address the veteran’s arguments in
turn.
6

1. PTSD Diagnosis
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v.
Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999).
Because “Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” “there can be no valid claim” for service connection “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet.App.
223, 225 (1992); see Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (“The statutes governing payment of benefits for disability . . . only allow payment for disability existing on and after the date of application.”). The requirement that a claimant have a current disability before service connection may be granted “is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet.App. 319, 321 (2007); cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013) (the Board must consider evidence of a “recent” diagnosis made prior to the filing of a claim).
For claims for service connection for PTSD, the current disability requirement must be proven with evidence diagnosing the condition in accordance with the DSM-IV. See 38 C.F.R. §§ 3.304(f), 4.125(a) (2013). “[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor” because “[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis.” Cohen v. Brown, 10 Vet.App. 128, 140 (1997).
The Board’s determination that a claimant does or does not have a current
disability is a
finding of fact subject to the “clearly erroneous” standard of review set
forth in 38 U.S.C.
§ 7261(a)(4). See McClain, 21 Vet.App. at 321-22. “A factual finding ‘is “
clearly erroneous” when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” Hersey v.
Derwinski, 2 Vet.App.
7

91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)). As with any
finding on a material issue of fact and law presented on the record, the
Board must support that determination with an adequate statement of reasons or bases that enables
the claimant to understand the precise basis for that determination and facilitates review in this
Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The record in this case contains numerous PTSD diagnoses made by mental
health professionals, many of which expressly cite the DSM-IV. R. at 915 (September 2005 “initial DSM-IV diagnosis” of PTSD made bya VA clinical social worker), 187 (June 2006
PTSD diagnosis made by Dr. Vargas López), 567 (March 2007 “Diagnosis (DSM III or IV)” of PTSD
made by Dr. Vargas López), 807 (April 2007 “initial DSM-IV diagnosis” of PTSD made by a VA
psychologist). The only reason that the Board gave for rejecting the September 2005 and June 2006 PTSD diagnoses was that they were not accompanied by “actual recordation of test results or indications that the DSM-IV criteria were in fact[] applied and met.” R. at 14. However, the Board did not acknowledge that the September 2005 diagnosis explicitly referenced the DSM-IV, nor  did it explain why the presumption that those diagnoses were rendered in accordance with the DSM-IV did not apply. See Cohen, 10 Vet.App. at 140. Moreover, the Board appears to have completely overlooked the March and April 2007 PTSD diagnoses, both of which referenced the DSM-IV. See R. at 14 (Board
discussed only the September 2005, June 2006, and February 2008 PTSD diagnoses).4
The Board’s
failure to address the Cohen presumption and its failure to account for
the PTSD diagnoses of record
both constitute error. See Cohen, 10 Vet.App. at 143-45 (Board errs when
it “summarily reject[s]
diagnoses of PTSD” and does not rely on independent medical evidence as to
why those diagnoses
did not comply with the DSM-IV); Caluza v. Brown, 7 Vet.App. 498, 506 (
1995) (Board errs when
it fails to account for any material evidence favorable to the claimant).
Having concluded that the Board erred in its treatment of the PTSD
diagnoses of record, the
question remains as to the proper remedy for that error. Although Mr.
Cartagena-Vazquez argues
for reversal of the Board’s finding that the record does not contain a
PTSD diagnosis made in
accordance with the DSM-IV, the Court agrees with the Secretary that
remand, not reversal, is
4
The record of proceedings does not contain a February 2008 medical record
diagnosing PTSD.
8

warranted because there is more than one permissible view of the evidence
of record. See Gutierrez
v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate
remedy when the only
permissible view of the evidence is contrary to the Board’s decision.”).
Specifically, the record
contains conflicting medical evidence as to whether the veteran has PTSD,
compare R. at 187, 567,
807, 915 (diagnoses of PTSD), with R. at 131-46, 865-76 (VA psychiatric
examinations finding that
the veteran did not meet the DSM-IV diagnostic criteria for PTSD), and the
Board, not the Court,
is the entity best positioned to evaluate that evidence and apply the
Cohen presumption, see Smith
v. Shinseki, 24 Vet.App. 40, 48 (2010) (“The Board, not the Court, is
responsible for assessing the
credibility and weight to be given to evidence.”). Therefore, the Court
concludes that remand is the
appropriate remedy in this case. See Tucker v. West, 11 Vet.App. 369, 374 (
1998) (holding that
remand is the appropriate remedy”where the Board has incorrectlyapplied
the law, failed to provide
an adequate statement of reasons or bases for its determinations, or where
the record is otherwise
inadequate”); see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir.
2013) (explaining that
reversal is appropriate only”where the Board has performed the
necessaryfactfinding and explicitly
weighed the evidence” and this Court, based “on the entire evidence, . . .
is left with the definite and
firm conviction that a mistake has been committed”).
2. Etiology of Depressive Disorder
To the extent that the Board separately adjudicated the PTSD and
depressive disorder
portions of the veteran’s claim for service connection for an acquired
psychiatric disorder (see R. at
13-19, 29), the parties agree that the Board also erred in denying service
connection for an acquired
psychiatric disorder other than PTSD because it failed to consider and
discuss VA treatment notes
from June, October, and December 2007 indicating that the veteran’s
depression and anxiety are
“related to experiences in [Vietnam]” (R. at 801, 1704, 1709). See
Secretary’s Br. at 14-15; Reply
Br. at 1-2. The Court agrees that the Board erred in not addressing that
evidence, see Caluza, supra,
and that remand of that portion of the veteran’s claim for service
connection for an acquired
psychiatric disorder is also warranted, see Tucker, supra.
3. VA’s Duties To Notify and To Assist
Although the Court has already concluded that remand is warranted for the
Board to
readjudicate all aspects of the veteran’s claim for service connection for
an acquired psychiatric
9

disorder, the Court will, for the sake of guidance on remand, address Mr.
Cartagena-Vazquez’s
additional duty-to-notify and duty-to-assist arguments with respect to
that claim. See Quirin v.
Shinseki, 22 Vet.App. 390, 396 (2009) (holding that, to provide guidance
to the Board, the Court
may address an appellant’s other arguments after determining that remand
is warranted).
Specifically, the veteran asserts that the Board erred in finding that VA
satisfied its duties to notify
and assist because (1) VA did not adequately notify him of the amendments
to § 3.304(f) in
accordance with the April 2012 Board remand order; (2) VA did not attempt
to obtain the private
medical records from Dr. Vargas López; and (3) the May 2012 VA
psychiatric examination was
inadequate. Appellant’s Br. at 15-18, 20-25. These arguments are
persuasive.
First, although the April 2012 Board remand directed the AMC to “[p]rovide
the [v]eteran
with notice of the amended PTSD regulations and the new requirements for
substantiating a claim
for PTSD” (R. at 180), the AMC’s letter to Mr. Cartagena-Vazquez later
that month did not mention
those amendments or inform him about the new rule (see R. at 167-74). The
notice that the AMC
provided was therefore deficient because it contravened the terms of the
April 2012 Board remand
order. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding that the
Board errs when it fails
to ensure compliance with the terms of a prior remand).
Second, as the Secretary concedes (see Secretary’s Br. at 17), the record
of proceedings does
not reflect that VA attempted to obtain private psychiatric treatment
records from Dr. Vargas López,
even though the veteran adequately identified those records and authorized
VA to do so (R. at 923-
24). The Secretary’s duty to assist includes making “reasonable efforts to
obtain relevant private
records that the claimant adequately identifies,” and, if those records
are unavailable, to notify the
claimant of their unavailability. 38 U.S.C. § 5103A(b)(1)-(2); 38 C.F.R. §
3.159(c) (2013); see
Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). VA did not undertake
either action in this case,
and, contrary to the Secretary’s contention (see Secretary’s Br. at 17-18),
that error is not harmless
because records of Dr. Vargas López’s treatment of the veteran maycontain
evidence relevant to the
veteran’s claim. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take
due account of the rule of
prejudicial error”).
Finally, contrary to the Board’s finding, the May 2012 VA psychiatric
examination is
inadequate because it contains seemingly contradictory information as to
whether the veteran has
10

PTSD. Specifically, the examiner found both that the veteran had “a
diagnosis of PTSD that
conforms to DSM-IV criteria based on [that] evaluation” (R. at 131) and
that he did not meet the
DSM-IV criteria for diagnosing PTSD (R. at 138). This internal
inconsistency prevents the Board
from being sufficiently informed as to whether the examiner was diagnosing
PTSD in accordance
with the DSM-IV and the Board erred in relying on that equivocal
examination report in denying the
veteran’s claim. See Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (
holding that a VA medical
examination is adequate “where it is based upon consideration of the
veteran’s prior medical history
and examinations and also describes the disability . . . in sufficient
detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one'” (
quoting Ardison v. Brown,
6 Vet.App. 405, 407 (1994))); Green v. Derwinski, 1 Vet.App. 121, 124 (
1991); see Monzingo v.
Shinseki, 26 Vet.App. 97, 105 (2012) (explaining that medical examination
report or opinion must
“sufficientlyinformtheBoardofa medical expert’s judgment on a medical
question and the essential
rationale for that opinion”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295,
301 (2008) (“[A] medical
examination report must contain not onlyclear conclusions with supporting
data, but also a reasoned
medical explanation connecting the two.”).
In light of the foregoing, the Court concludes that the Board committed
clear error in finding
that VA satisfied its duties to notify and to assist Mr. Cartagena-Vazquez
with respect to his claim
for service connection for an acquired psychiatric disorder. See Garrison
v. Nicholson, 494 F.3d
1366, 1370 (Fed. Cir. 2007) (Court reviews the Board’s factual
determination that VA satisfied its
duty to notify under the “clearly erroneous” standard of review); Nolen v.
Gober, 14 Vet.App. 183,
184 (2000) (same standard of review for the Board’s duty-to-assist
determination). These errors
further justify remand of that claim. See Tucker, supra. On remand, unless
the Board decides to
grant service connection, the Board must provide Mr. Cartagena-Vazquez
with notice of the PTSD
regulations applicable to his claim in accordance with the April 2012
Board remand, see Stegall,
11 Vet.App. at 271, and a new VA medical examination that clearly and
unequivocally lists his
current psychiatric diagnoses and opines as to whether any diagnosed
condition is as likely as not
related to service, see Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[
O]nce the Secretary
undertakes the effort to provide an examination when developing a service-
connection claim . . . ,
11

he must provide an adequate one or, at a minimum, notify the claimant why
one will not or cannot
be provided.”).
B. Hypertension
Mr. Cartagena-Vazquez argues that the Board erred in finding that VA
satisfied its duty to
assist him in developing the claim for service connection for hypertension
because VA did not
attempt to obtain private hypertension treatment records. Appellant’s Br.
at 16-17; Reply Br. 2-3.
He also contends that the May 2012 VA hypertension examination is
inadequate, and the Board
therefore erred in relying on it, because “the examiner based his opinion
regarding incurrence solely
on the fact that high blood pressure did not develop until many years
after service.” Appellant’s Br.
at 20; see Reply Br. 3-4. The Secretary responds that VA was not obligated
to attempt to obtain
private hypertension treatment records because Mr. Cartagena-Vazquez did
not adequately identify
those records or authorize VA to obtain them. Secretary’s Br. at 18-20. He
also asserts that the May
2012 VA hypertension examination is adequate because it is based on a
review of the veteran’s
records and is supported by an adequate rationale. Id. at 20-22. The Court
is persuaded by the
veteran’s first argument but not his second argument.
As explained above, the Secretary’s duty to assist includes making
reasonable efforts to
obtain relevant medical records, including records from private medical
professionals, as long as the
claimant adequately identifies those records and authorizes the Secretary
to obtain them. 38 U.S.C.
§ 5103A(b)(1); see Loving, supra; 38 C.F.R. § 3.159(c)(1), (3).
If VA becomes aware of the existence of relevant records before deciding
the claim,
VA will notify the claimant of the records and request that the claimant
provide a
release for the records. If the claimant does not provide any necessary
release of the
relevant records that VA is unable to obtain, VA will request that the
claimant obtain
the records and provide them to VA.
38 C.F.R. § 3.159(e)(2) (2013); see Solomon v. Brown, 6 Vet.App. 396, 401 (
1994) (“[W]here the
VA is on notice that records supporting an appellant’s claim may exist,
the VA has a duty to assist
the appellant to locate and obtain these records.”); Ivey v. Derwinski, 2
Vet.App. 320, 323 (1992)
(holding that evidence of record before VA may “raise[] enough notice of
pertinent private medical
records to trigger the duty to assist”).
12

VAtreatmentnotesreflectthat,onseveraloccasions,Mr.Cartagena-Vazquez
reportedto VA
medical professionals that he was being treated for hypertension by a
private physician. R. at 148,
790, 808, 867. Other documents of record and in VA’s possession identify
that physician as Dr.
Ralph C. Conaway-Lanuza. R. at 773-75. Although the Secretary is correct
that the record does not
contain a signed VA Form 21-4142 authorizing VA to obtain private medical
records from Dr.
Conaway-Lanuza (see Secretary’s Br. at 19-20), the duty to assist required
VA, once it was put on
notice that relevant private records from Dr. Conaway-Lanuza had not been
associated with the
claims file, to inform the veteran that those records were outstanding and
to request that he complete
the necessary form authorizing VA to obtain those records. See 38 C.F.R. §
3.159(e)(2); see also
Solomon and Ivey, both supra. Because VA failed to do so, the Court
concludes that the Board’s
finding that VA satisfied its duty to assist Mr.Cartagena-Vazquez in
developinghisclaimforservice
connection for hypertension is clearly erroneous, and remand is warranted
on that basis. See Nolen
and Tucker, both supra.
Even though that claim is being remanded, the Court will nevertheless
address the veteran’s
additional argument regarding the adequacy of the May 2012 VA hypertension
examination so that
the Board will know whether it is permitted to rely on the results of that
examination on remand.
See Quirin, 22 Vet.App. at 396. Specifically, Mr. Cartagena-Vazquez
challenges the adequacy of
that examination on the groundthattheexaminerdid not provide an adequate
explanation for finding
that the veteran’s hypertension was not incurred in service. Appellant’s
Br. at 20. However, the
examiner reviewed the claims file, including the veteran’s service medical
records, and noted that
Mr. Cartagena-Vazquez was first diagnosed with hypertension years after
service in 1998 or 1999
and “all the blood pressure readings taken during service [were] normal.”
R. at 86. He also
considered whether hypertension was secondary to any other potentially service-
connected condition and determined that it was not. Id. This is a permissible basis for
finding that the veteran’s hypertension was not incurred in service, and it is supported by reasoning that is sufficiently detailed to facilitate the Board’s adjudication of the claim. See Monzingo, Stefl, Ardison, and Green, all
supra.
Although Mr. Cartagena-Vazquez believesthat the May2012 VA hypertension
examination
violates the principle that “[s]ervice connection may be granted for any
disease diagnosed after
13

discharge, when all the evidence, including that pertinent to service,
establishes that the disease was
incurred in service,” 38 C.F.R. § 3.303(d) (2013), he has not identified
any evidence of record, nor
can the Court locate any, that indicates that he had high blood pressure
or some other indicator of
hypertension in service or exposure that as likely as not initiated the
later development of
hypertension. Therefore, he has failed to carry his burden of
demonstrating error in that regard. See
Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the
appellant has the burden
of demonstrating error).
Absent any further assertion of error, the Court concludes that the Board
did not clearly err
in finding the May 2012 VA hypertension examination to be adequate. See
D’Aries v. Peake,
22 Vet.App. 97, 104 (2008) (Court reviews the Board’s determination that a
medical examination
or opinion is adequate under the “clearly erroneous” standard of review).
However, given that the
duty to assist has not yet been satisfied and VA’s actions may result in
additional medical records
being associated with the claims file, the Board must reevaluate the
adequacy of that examination
after the required development is complete and consider whether a new
medical examination is
warranted in light of that development. If the Board determines that a new
medical examination is
not necessary and that the May 2012 VA hypertension examination remains
adequate, it must
provide adequate reasons or bases for those determinations. See Duenas v.
Principi, 18 Vet.App.
512, 517 (2004).
III. CONCLUSION
Upon consideration of the foregoing, the appealed portions of the March 7,
2013, Board
decision are SET ASIDE and the matters are REMANDED for further
development, if necessary,
and readjudication consistent with this decision.
DATED: April 23, 2014
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
14

 

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