Citation Nr: 1017490 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 06-13 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disability, to include a generalized anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to June 1987 and in the National Guard from June 1990 to December 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The United States Court of Appeals for Veterans Claims (Court) has recently held that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet App 1 (2009). In this case, the Board has considered the Veteran's claim for all possible psychiatric disorders as discussed below. 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 VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent medical records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). There is a DD Form 214 of record which verifies the Veteran's active duty from August 1983 to June 1987. National Guard records also show that he had over 20 years of total service including guard service from July 1992 to November 2004. A remand is necessary to verify the dates and types of the Veteran's active duty service, including any periods of active duty service with the Army National Guard. The Veteran claims that his hypertension and anxiety disorder were incurred in and/or aggravated by his active service, including in the National Guard. The evidence of record suggests that the Veteran was diagnosed with hypertension in December 1999. On the Report of Medical History in October 1999, the Veteran reported high blood pressure. He also indicated that panic attacks began in 1994, and he reported nervous trouble on the Report of Medical History in October 1999. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, the Board considers four factors. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). In this case, there is evidence that the Veteran has current disabilities including hypertension and generalized anxiety disorder. A July 2004 letter from a private physician verified the current diagnoses. The Veteran asserted that his disabilities began in service and/or were aggravated by his National Guard service. Although, service treatment records do not specifically show treatment for the disabilities in active service, it appears that the disabilities manifested prior to the Veteran's discharge from the National Guard. The Board notes that headaches were treated in active service, which could be a symptom of hypertension. Additionally, panic attacks are readily observable by laypersons and do not require medical expertise to establish their existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to describe the nature of his headaches and panic attacks in service. See 38 C.F.R. § 3.159(a)(2) (2009); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, the Veteran was given a medical discharge from the National Guard due to his hypertension and panic attacks. To date, VA examinations have not been conducted. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). In view of the foregoing, the Board finds that VA examinations are warranted to determine if hypertension and/or an acquired psychiatric disability were incurred in or aggravated by service. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the service department to verify all of the Veteran's periods of service. Request from the service department a complete copy of the Veteran's service personnel records and separation certificates and other related materials that document the dates and nature of his active duty, active duty for training, and inactive duty training. If the records do not exist or cannot be located, the claims file should document the efforts that were made to obtain the same, and the RO should issue a formal finding of the unavailability of those records and associate them with the claims file. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009) (emphasis added). 2. The RO should schedule the Veteran for an appropriate examination to determine the etiology of current hypertension. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should state whether the Veteran's hypertension 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), causally or etiologically related to or aggravated by active service or to a period of active service in the National Guard. Any opinion expressed, whether positive, negative or speculative, should be accompanied by supporting rationale. 3. The RO should schedule the Veteran for an appropriate examination to determine the etiology of current acquired psychiatric disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should state whether the any current acquired psychiatric disability 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), causally or etiologically related to or aggravated by active service or to a period of active service in the National Guard. Any opinion expressed, whether positive, negative or speculative, should be accompanied by supporting rationale. 4. The RO should then readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). 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. 2009). _________________________________________________ LANA K. JENG Acting 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).