Citation Nr: 1308658 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-25 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the Appellant, had active service from November 1990 to December 1991, in addition to reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, denied service connection for depression and for hypertension. The Veteran appealed and perfected an appeal only with regards to the claim for service connection for hypertension. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in December 2010, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. Unfortunately, the Board finds that still further development is required, as the RO has not fully complied with the Board's December 2010 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND VA has a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). While the Veteran had over a year of active duty service, documents in the claims file indicate that he had reserve service that may have spanned from August 1970 through 2002. See August 2004 Chronological Statement of Retirement Points. As well, other correspondence from the RO to the Veteran indicated he performed drill days for pay in fiscal year 2003. See January 2005 RO Letter to Veteran. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or for residuals of injury incurred or aggravated during inactive duty training (INACDUTRA). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6(a), (c) (2012). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from injury (but not disease) incurred in the line of duty. 38 U.S.C.A. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA (emphasis added). Id. See also 38 U.S.C.A. §§ 106, 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). The Board notes that, although the Veteran's available reserve service treatment records have been associated with the claims file, the Veteran's available service personnel records, namely those confirming the dates of ACDUTRA and INACDUTRA, have not been associated with the claims file. Such records could be used to confirm whether any symptoms of hypertension, including elevated blood pressure readings, occurred during a period of ACDUTRA. Every effort should be made to obtain those records, in order to ensure that there is a complete record upon which to decide the Veteran's claim. Additionally, the Board notes VA treatment records dated January 2001 through July 2002 refer to the Veteran having a diagnosis of hypertension that was being treated by prescribed medication. In the December 2010 Remand, the Board noted that the Veteran's VA treatment records showed a diagnosis of hypertension, treated by medication, since at least January 2001 and that VA treatment reports in the record ended in July 2002 and resumed again dated June 2005. The AMC/RO was instructed to obtain all available VA treatment records pertaining to the Veteran's hypertension. The Court has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall, supra. A review of the VA treatment records obtained indicates that the AMC/RO failed to obtain relevant records dated from July 2002 through July 2004. In particular, the Board observes that available records dated August 2004 through July 2011 were obtained in response to the Remand; nonetheless, according to the Veteran, he has been treated since 2000 for hypertension. The Board observes that relevant VA treatment records dated July 2002 through July 2004 and March 2000 through January 2001 have not yet been obtained. In this regard, an August 2004 VA treatment note indicates that the Veteran was being seen for follow-up, as he was treated every three months by the clinic for hypertension and other medical problems. Likewise, the Veteran's statements indicate his treatment is ongoing, and there is no indication that more recent records have been associated with the claims file, despite the indication that they exist and likely contain information regarding the claim for service connection for hypertension. VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Furthermore, the Board observes that the Veteran has not yet been afforded a VA examination, and that in a statement dated February 2012 he contends that his blood pressure readings since 1990 were elevated such that they constitute evidence indicative of symptoms of hypertension during service. Following confirmation of the dates of the Veteran's period of ACDUTRA, the AMC/RO should obtain a VA examination in an effort to determine whether any of the elevated blood pressure readings during the period of active duty service and/or ACDUTRA were symptomatic of hypertension, such that that the current hypertension is causally or etiologically related to service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, additional clinical assessment and medical opinion is necessary to adequately address the Veteran's claim of entitlement to service connection for hypertension. Accordingly, the Board finds that the Veteran should be afforded a VA examination with medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the case is REMANDED for the following action: 1. Request any/all additional available service personnel records from the National Personnel Records Center, the Defense Personnel Records Imaging System, and/or the Commander of the Veteran's National Guard unit which confirm the Veteran's periods of ACDUTRA. If no additional service personnel records can be found, or if they have been destroyed, ask for specific written confirmation of that fact. 2. Associate with the claims file the Veteran's complete VA treatment records from the Dallas, Texas medical center and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the periods of March 2000 to January 2001, July 2002 through August 2004, and from July 2011 to the present. 3. Schedule the Veteran for a VA examination in order to assist in determining the current nature and likely etiology of hypertension. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's hypertension is related to any active duty service and/or any period of ACDUTRA, including any elevated blood pressure readings. A rationale for all opinions expressed should be provided. The relevant documents in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 4. Readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to provide assistance by further developing the record. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. Parker 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).