Citation Nr: 1310877 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-00 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for peripheral neuropathy to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the Veteran's claims for service connection for hypertension, post traumatic stress disorder (PTSD) and peripheral neuropathy to include as due to exposure to herbicides. The Veteran and his wife testified at a November 2008 hearing at the RO before a Veterans Law Judge (VLJ). The Board remanded the claims in a February 2009 decision. In a December 2011 decision, the Board granted service connection for PTSD and again remanded the claims for service connection for hypertension and peripheral neuropathy. The Veteran was informed in a February 2013 letter from the Board that the VLJ who conducted the November 2008 hearing was no longer employed at the Board, and that he had the right to a new hearing before a VLJ who would decide his claims. In a February 2013 response, the Veteran waived his right to a new hearing. 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 The Board reluctantly must remand the claims. Compliance with remand instructions is neither optional nor discretionary and where the remand orders of the Board are not satisfied, the Board errs as a matter of law when it fails to ensure substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet.App. 141, 146-47 (1999). As noted by the Veteran's representative in the October 2012 brief in support of the Veteran's claims, the Board's December 2011 remand directed VA to "[O]btain and associate with the Veteran's claims file his VA treatment records maintained by the VA Puget Sound Health Care System - Seattle Division, dated from September 2007 to the present" to specifically include treatment records regarding the Veteran's neuropathy. The Veteran contends that all of the records were not obtained as required by the December 2011 remand order. Review of the record shows that VA obtained records from VA Puget Sound dated from July 2, 2010, to June 2, 2011. See August 2012 supplemental statement of the case (SSOC). The Veteran's Virtual VA electronic records includes VA treatment records from September 2007 through June 2, 2011; a wider range of treatment records than were identified in the August 2012 SSOC. Moreover, there is nothing in the June 2011 SSOC that indicates the September 2007 through July 2010, records were reviewed by the AOJ. The Board has reviewed the electronic records and notes that several include reference the Veteran's complaints of symptoms attributable to an ongoing neuropathy disorder. Finally, it is unclear whether the June 2011 VA examiner reviewed the relevant records included in Virtual VA. Because there appear to be relevant records that were not reviewed by the AOJ and because the AOJ did not include records in the Veteran's VA claims folder as directed by the Board's December 2011 remand, the Board finds that Stegall necessitates a remand for substantial compliance with the Board's December 2011 remand. The Board remands the claim for inclusion of all VA treatment records from September of 2007 to the present in the Veteran's VA claims folder. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VA treatment records from any VA facility that pertain to the Veteran from September 2007 to the present are included in the Veteran's VA claims folder. 2. If the AOJ determines that relevant medical treatment records regarding the Veteran's peripheral neuropathy or hypertension disorders are included in those added to the Veteran's VA claims folder, then VA should provide the Veteran's VA claims folder to an appropriate VA examiner who should review the claims folder and provide an opinion whether it is at least as likely as not that the Veteran's hypertension is related to his active duty service. The examiner should also provide an opinion whether it is at least as likely as not that the Veteran's peripheral neuropathy disorder is related to his active duty service, including whether it is at least as likely as not related to exposure to herbicides. Any opinion offered should be supported by rationale and, if appropriate, by reference to medical literature. If the examiner determines that examination of the Veteran is required in order to provide the requested opinions, then such an examination should be accomplished. 3. After completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, prepare a supplemental statement of the case and return the Veteran's VA claims folder to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS 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).