Citation Nr: 1314653 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 11-03 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Heather VanHoose, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1974. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran contends that he is entitled to service connection for hypertension, as he believes that this disorder had its onset in service. 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes cardiovascular-renal diseases, such as hypertension. See 38 C.F.R. § 3.309(a). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. As reported during his July 2012 Board hearing, the Veteran contends that his high blood pressure was first noted at the time of his entrance into service, when examiners took a number of blood pressure readings before he received a passing result. He indicated that only the passing reading was noted in his file. The Veteran also claimed that he was given a pill and made to wait before getting an acceptable blood pressure reading. He further stated he was overweight upon entrance into service. In addition, the Veteran has stated that he served as a medic and licensed practical nurse (LPN) during service and took his own blood pressure readings at that time, which he reported fluctuated wildly and were frequently in the hypertensive range. Finally, the Veteran has also reported that he had experienced symptoms of high blood pressure, including a flushed face and racing heartbeat, during and continuously since service. He has further asserted that he was seen for symptoms of chest pain in service. The Veteran expressed, that while he was not diagnosed or treated for hypertension until he was age 50 or 51, he experienced the same symptoms since service. The Veteran's service treatment records do not document any diagnosis or treatment of hypertension at entrance or discharge. His entrance examination indicates that he was 17 pounds overweight and that his blood pressure reading was 136/80. A blood pressure reading of 132/80 was also noted upon his discharge. In addition, he denied having a medical history of shortness of breath, pain or pressure in the chest, heart trouble, high or low blood pressure, or any nervous trouble or excessive worry during his entrance and discharge examinations. While a September 1974 treatment report reflects complaint of chest pain aggravated by heavy meals and alcohol, an impression of probable reflux esophagitis was indicated. Following service, post-service VA outpatient treatment records reflect that the Veteran was diagnosed and treated for hypertension in approximately 2004. While there is no indication of an earlier diagnosis of hypertension, there are earlier treatment records indicating high blood pressure readings. In a report dated on May 23 with no specified year, his blood pressure was 140/80. It was noted that the Veteran was to return on May 27. A second report dated on May 27, 1975, reflects that the Veteran did not report for follow-up. Thus, the second report appears to date the initial blood pressure reading to May 1975, which would have been approximately 6 months after the Veteran's discharge from service. In addition, an October 1978 report reflects a blood pressure reading of 132/84, while his blood pressure was noted to be 130/90 in November 1978. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals, such as his in-service symptoms. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the record indicates that the Veteran served as a medical corpsman during service and thus possesses some medical training. The Board points out that, in Black v. Brown, 10 Vet. App. 279, 284 (1997), the United States Court of Appeals for Veterans Claims held that a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment. Nevertheless, the Veteran has not been afforded a VA examination to determine the etiology of his hypertension. In light of the foregoing, the Board finds that a medical opinion is needed to resolve the claim for service connection on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. Lastly, the claims file reflects that there may be outstanding VA medical records that may be pertinent to the claims on appeal. In this regard, it appears that the Veteran receives treatment at the Huntington VA Medical Center (VAMC). While the claims file currently includes outpatient treatment records from this VAMC dated through August 2010, more recent records of VA treatment may be available. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). Therefore, the RO should obtain any outstanding VA treatment records dated since August 2010. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all outstanding pertinent VA treatment records dated since August 2010. The RO should follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's current hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran's service treatment records show that he complained of chest pains in September 1974. There is also a post-service treatment report dated approximately 6 months after discharge from service documenting him as having a blood pressure reading of 140/80. Moreover, the Veteran is competent to attest to factual matters of which he had first-hand knowledge. It should also be noted that he served as a medical corpsman. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's current hypertension is related to any symptomatology in service or is otherwise causally or etiologically related to his military service, to include whether hypertension first manifest in service or to a compensable degree within one year of discharge from service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO should undertake any other development it determines to be warranted. 4. The RO should then readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned 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). _________________________________________________ JESSICA J. WILLS 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).