Citation Nr: 0812827 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 01-05 413A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran served on active military service from April 1985 to June 1993 and also had over 13 years of prior active service of unverified dates. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2000-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for hypertension. The Board remanded the case in November 2003 for further development. In November 2002, the Board denied an application to reopen claims for service connection for a headache disorder and for sleep apnea. The United States Court of Appeals for Veterans Claims (Court) remanded that decision in January 2004. Since then service connection for those claimed disabilities has been granted and there remains no further issue for Board resolution. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA's duty to assist the veteran has not been satisfied in this case. The claims files indicate that the original claims file has been lost. Service medical records (SMRs) are not associated with the current claims files, which suggests that the SMRS are lost with the original claims file. It is not clear, however, that VA has requested replacement SMRs from the National Personnel Records Center (NPRC) and it is possible that NPRC has retained a microfiche or other records that could be pertinent. Therefore, the AOJ should contact NPRC and attempt to obtain a copy of any available SMRs or other pertinent service records. Although competent evidence of hypertension has been submitted, the veteran has not been offered a VA examination to determine the etiology of it. The Court has set forth the circumstances under which VA shall offer a VA examination. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, VA must provide a medical examination if there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but, (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Court observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is: (1) competent evidence of hypertension; (2) because the veteran recalls that high blood pressure readings began during active service, and he is competent to recall such details, there is lay evidence establishing that an event, injury, or disease occurred in service, or during an applicable presumptive period; (3) the veteran's assertion of high blood pressure readings during his over 21 years of active service suggest that the disability or persistent or recurrent symptoms of a disability may be associated with his active service; and (4) there is insufficient competent medical evidence on file for the Board to make a decision on the claim at the present time. In November 2003, the Board remanded the case to search for additional relevant medical evidence. The AOJ requested that the veteran report any relevant treatment during or since active service. He did not respond to the request. He should therefore be contacted again and asked for relevant evidence of treatment during or since active service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact NPRC and attempt to locate any available SMRS and other personnel records that might be pertinent. If the search yields no record, then that fact should be documented in the claims files. 2. The AOJ should contact the veteran and request that he report where he received treatment for hypertension during and since active service. 3. After the development requested above has been completed, the AOJ should make arrangements with the appropriate VA medical facility for the veteran to be afforded a cardiovascular examination by an appropriate specialist. The claims file should be made available to the physician for review of the pertinent evidence. The physician should elicit a complete history of high blood pressure readings and other pertinent symptoms from the veteran, and answer the following: I. Does the veteran have hypertension? II. If the answer above is "yes", is it at least as likely as not that this disability had its onset in service? III. If the answer in question II above is "no", is it at least as likely as not that hypertension began within one year of discharge from active service? IV. If the answer in question III above is "no" is it at least as likely as not that hypertension was caused by or is aggravated by any service-connected disability? V. The physician should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the physician should state the reason. At the time of this writing, service connection is in effect for obstructive sleep apnea syndrome, low back syndrome, migraine and tension headaches, osteophyte of the right index finger, and post- traumatic posterior right femur ossification. 4. After the development requested above has been completed to the extent possible, the AOJ should readjudicate the service connection claim for hypertension. If the benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to report for examination without good cause may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. This claim must be afforded expeditious treatment. The law requires that all claims 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 Supp. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).