Citation Nr: 1303393 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-09 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a low back disability, to include degenerative joint and disc disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty in the United States Army from August 1961 to March 1965. He was a member of the reserve from March 1965 to December 2004, during which he had numerous periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter came to the Board of Veterans' Appeals (Board) on appeal from September 2005 and January 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2008, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. This matter was last before the Board in August 2011. At that time, the Board denied entitlement to a compensable rating for bilateral hearing loss. The remaining issues then on appeal - entitlement to service connection for a left shoulder disability, hypertension, and a low back disability - were remanded for additional evidentiary development. In a September 2012 rating decision, the RO granted entitlement to service connection for a left shoulder degenerative joint disease. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal with respect to the claim of entitlement to service connection for a left shoulder disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the appellant has initiated an appeal with the initial rating or effective date assigned. Thus, those matters are not in appellate status. Id. (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). 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 Hypertension The appellant seeks entitlement to service connection for hypertension. He has advanced several theories of entitlement, including that service connection is warranted because hypertension is secondary to his service-connected diabetes mellitus. In support of his contention in this regard, the appellant has submitted a fact sheet on hypertension published by the Mayo Clinic noting that certain chronic conditions, including diabetes, could increase the risk of developing high blood pressure. The record on appeal shows that the appellant was afforded a VA medical examination in connection with his claim of service connection for hypertension in March 2012. The examiner's opinion, however, did not include address whether the appellant's hypertension is causally related to or aggravated by his service-connected diabetes mellitus. To ensure that VA's duty to assist has been met, therefore, another medical examination is necessary. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that a medical examination is necessary when the evidence indicates that a current disability may be associated with service or a service-connected disability, but is lacking in specificity to support a decision on the merits); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Low back disability, to include degenerative joint and disc disease The appellant also seeks entitlement to service connection for a low back disability, to include degenerative joint and disc disease. He reports that he initially injured his low back while stationed at Fort Hood, Texas, in 1962, during his period of active duty. He reports that low back symptomatology has recurred on an intermittent basis since. The appellant further contends that his low back disability was aggravated over the course of his nearly 40-year career as a reservist. He does not report a specific low back injury during this time, but theorizes that engaging in activities such as loading and unloading military supplies and equipment aggravated his low back disability. Under applicable criteria, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service." 38 U.S.C.A. §§ 1110, 1131 (2012). The term "active military, naval, or air service" includes "active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). In other words, notwithstanding his period of active duty from August 1961 to March 1965, any evidence that the appellant developed a low back disability at some point during the lengthy time period he was a member of the reserve is not enough to establish service connection. Rather, to warrant service connection based on reserve service, the appellant must show (1) that he became disabled from a disease or injury during a period of active duty for training; or (2) that he became disabled from an injury during a period of inactive duty training. Pursuant to the Board's August 2011 remand instructions, the appellant underwent VA medical examination in March 2012 in connection with his claim of entitlement to service connection for a low back disability. The examiner concluded that the appellant's current low back disability, degenerative joint disease, was less likely than not incurred in service because the claims file did not document back complaints during active duty or any period of active duty for training. The examiner's description is not accurate, however, and that inaccuracy limits the probative value of the opinion. For example, the record shows that at the appellant's October 2004 military retirement medical examination, and on several previous occasions, he reported sustaining a back injury in 1962 and experiencing infrequent relapses since that time, some of which were reportedly severe. Additionally, documentation notwithstanding, the appellant's lay descriptions of his in-service injuries and symptomatology are competent evidence and must be considered by the examiner. Thus, to ensure that VA's duty to assist has been met, another medical examination is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Finally, in the August 2011 remand, the Board directed the RO to contact the service department for the purpose of obtaining the specific dates of "each and every" period of the appellant's ACDUTRA and INACDUTRA during his membership in the U.S. Army Reserve from 1965 to 2004. The record on appeal, however, indicates that the information provided by the service department corresponded to the period from September 1994 to December 2004 only. There is no indication that the RO made follow-up attempts to obtain the appellant's ACDUTRA and INACDUTRA dates prior to September 1994. The duty to assist requires VA to make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including the service department. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). VA may only end its efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. Given the questions at issue in this case, the appellant's ACDUTRA and INACDUTRA dates are potentially relevant. Therefore, additional efforts on the part of the RO are necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the service department, or other records depository as appropriate, and request the specific dates of each and every period of the appellant's ACDUTRA and INACDUTRA service between March 1965 to September 1994. Efforts to secure this information should include, if necessary, a review of the appellant's pay record through the Defense Finance and Accounting Service. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After the above development has been completed, the appellant should be afforded a VA medical examination for the purpose of determining the etiology of his current hypertension. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must opine, with supporting rationale, whether it is at least as likely as not that hypertension is causally related to the appellant's active service or any incident therein, including his presumed exposure to Agent Orange in Vietnam. The examiner must also address whether it is at least as likely as not that the hypertension is caused or aggravated by diabetes mellitus. If not, the examiner must explain why not. A complete rationale must be provided for any opinion offered. 3. After the development ordered in paragraph one has been completed, the appellant should be scheduled for a VA medical examination for the purpose of determining the nature and etiology of any current low back disability. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must opine whether it is as least as likely as not that any current low back disability identified on examination: (1) is causally related to the appellant's period of active from August 1961 to March 1965 or any incident therein, including his reported 1962 low back injury; or (2) had its onset during a period of active duty for training due to disease or injury, such as loading and unloading military supplies and equipment aggravated his low back disability; or (3) had its onset during a period of inactive duty training due to injury, including by engaging in activities such as loading and unloading military supplies. If not, the examiner must explain why not. The report of examination should include a complete rationale for all opinions rendered. 4. Thereafter, the RO must review the claims folders and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If either report is deficient in any manner, the RO must implement corrective procedures at once. 5. After undertaking any additional development deemed necessary, the RO should readjudicate claims, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ DEREK R. BROWN 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) (2012).