Citation Nr: 1004191 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 07-04 252 ) 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 an acquired psychiatric condition, to include insomnia and depression, also claimed as a nervous condition. 2. Entitlement to service connection for a left hand condition, to include carpal tunnel syndrome of the left wrist. 3. Entitlement to service connection for hypertension, claimed as high blood pressure. 4. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army Reserve with verified periods of active duty from March 2002 to November 2002, and from December 2003 to March 2005. During such service, the Veteran was deployed to Kuwait in support of Operation Iraqi Freedom from March 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before a Decision Review Officer (DRO) at the Regional Office in San Juan, Puerto Rico in August 2007 to present testimony on the issues on appeal. The hearing transcript has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record reveals that additional notification and evidentiary development is required before the issues of entitlement to service connection for a psychiatric condition, left hand disorder, hypertension and asthma are ready for Board adjudication. See 38 C.F.R. § 19.9 (2009). Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Board finds that the medical evidence currently of record is insufficient to decide the claim. Notably, the VA examinations conducted in October and November 2005 are over four years old and do not include opinions as to the likely etiology of the diagnosed conditions. The Board is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). Here, the medical evidence establishes that the Veteran has been diagnosed with or has received treatment for insomnia, bilateral wrist pain, high blood pressure, and asthma during the current appellate period. See VA & private treatment records. The Veteran's service treatment records confirm episodes of high blood pressure and asthma during his deployment to Kuwait. Service treatment records also confirm that the Veteran was prescribed a prescription sleep medication during hospital care provided on November 8, 2004. It is unclear from the record, however, whether there was any chronic sleep impairment during active duty service, or if the one noted instance was an acute condition related to the hospitalization. The Veteran has also testified that his left wrist or hand pain began during active duty, and has continued since that time. See DRO hearing transcript, August 2007. Based on the foregoing, the Board finds that additional examinations with associated medical opinions are necessary to determine the current nature and etiology of the claimed disabilities. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). In this regard, the examiner should consider the Veteran's and other lay statements regarding the symptoms experienced during active service and the statements regarding continuous symptoms since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in- service injury but relied on the service medical records to provide a negative opinion). Additionally, the most recent VA treatment records that have been associated with the claims file are dated in August 2007. All relevant VA treatment records created since that time should be obtained and associated with the claims file. The Board further notes that the April 2006 Rating Decision and the December 2006 Statement of the Case refer to a diagnosis of hypertension found in a VA outpatient treatment report dated November 15, 2005. The Board has been unable to locate a treatment report of this date within the claims file, although there is a record of vital signs recorded on this date. See VA Cumulative Vitals/measurements report. Generally, a remand is necessary to obtain outstanding VA treatment records because records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All outstanding VA treatment records, including those from November 2005, must be sought and associated with the claims file. Finally, adequate notice under 38 U.S.C.A. § 5103 (West 2002 & Supp. 2009), 38 C.F.R. § 3.159 (2009), and relevant case law has not been provided as it pertains to the specific issues on appeal. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Corrective notice is required. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the information and evidence necessary to substantiate his claims for service connection, to include the rating criteria by which a disability granted service connection will be evaluated and how the effective date of that grant will be assigned. 2. Ensure that all relevant VA treatment records are associated with the claims file, at least to include outpatient treatment records dated in November 2005 and since August 2007. Duplicates of outpatient records currently contained within the claims file need not be resubmitted. If any identified record is unavailable, the RO should so specifically state, and the documentation used in making that determination should be set forth in the claims file. All attempts to obtain these records, including those which may ultimately prove unsuccessful, must be documented in the claims folder. 3. Schedule the Veteran for VA examinations to determine the nature and etiology of any currently diagnosed psychiatric disorder, asthma, hypertension, and left hand or wrist condition. In this regard, the examiners should consider the lay statements of record regarding in- service symptomatology and continuity of symptomatology since service in accordance with the holding in Dalton, supra. The Veteran's claims file and a copy of this remand should be made available to the examiners for review. All necessary studies and tests must be conducted. The examiners are then requested to: (a) Identify all currently diagnosed disabilities pertinent to the claimed psychiatric condition, left hand/wrist disorder, hypertension and asthma; (b) If clinical hypertension is diagnosed, please note the blood pressure readings and dates upon which that diagnosis is based; (c) Identify the approximate date of onset for any chronic acquired disability identified in (a), specifically to include onset prior to military service, during active military service, or since active military service; (d) Opine, with adequate supporting rationale, whether any current disability identified above was incurred in or aggravated by active military service; (e) Identify whether it is at least as likely as not, based upon the evidence of record, that hypertension was present within one year from the Veteran's discharge from active military service, i.e. before March 28, 2006. 4. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, he and his representative must be furnished a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last Statement of the Case. The Veteran and his representative should be afforded the applicable time period in which to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). These claims 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. 2009). _________________________________________________ C. TRUEBA 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) (2009).