Citation Nr: 1316259 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-03 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for an eye condition, to include loss of vision and cataracts. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1952 to December 1953 and from August 1956 to January 1958. The Veteran also served in the Army National Guard between 1958 and 1990, including various periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in which the RO denied service connection for hypertension and an eye condition. A review of the Virtual VA system does not reveal any documents pertinent to the present appeal that are not already present in the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 This appeal must be remanded for additional development prior to the readjudication of the Veteran's claims. Initially, VA should attempt to verify all periods of his active duty service. The Veteran testified at his March 2013 hearing that he served full time in a federalized position with the Army National Guard between 1958 and 1988, and his belief that he was on active duty throughout that time. An Army National Guard Current Annual Statement from February 1991 provides a list of active duty points earned towards retirement, and indicates that the Veteran earned 784 active duty points between March 1958 and March 1990, presumably for ACDUTRA. VA should attempt to identify all periods of active duty between 1958 and 1990, to include specific dates, locations, and nature of service. VA should obtain and associate with the claims file all service treatment records. After verifying the Veteran's service, based on evidence of the dates and locations of that service, VA should ensure that all service treatment records have been associated with the claims file. Presently, it is apparent that the Veteran's service treatment records from his second period of active duty service are not of record, and it is not clear whether all available records from the Veteran's time with the Army National Guard have been obtained. There are some records on file, but once all duty is verified, it may be possible to determine if all records are on file. Documents in the claims file indicate that there are significant VA treatment records available that VA is yet to obtain. An April 1970 VA social work record indicated that the Veteran had been "in and out" of VA treatment for the previous 17 years. While there is nothing in the record to overtly indicate that records resulting from that treatment are relevant to the present appeal, it is reasonable that blood pressure and vision records may be included. Additionally, the Veteran testified in March 2013 that he has been receiving VA treatment for hypertension for the past five years. On remand, all relevant VA treatment records must be retrieved. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). VA has obtained records dating to 2007 from Kaiser Permanente, but it is evident that older records may be available. For example, the April 2007 optometry examination report indicated that an annual examination was performed a year prior; such a record is extremely relevant, as the current record suggests that cataracts were first diagnosed in 2007. Also, service treatment records from the 1980s include release forms pertaining to records from Kaiser Permanente. As these records are relevant to the present claim, VA should have the Veteran submit a new privacy release from the Veteran and attempt to obtain all records from any identified private medical provider. VA also must obtain appropriate medical opinions concerning the etiology of the claimed disabilities. VA provided the Veteran with a hypertension examination in April 2009, but failed to obtain an opinion as to whether the disability began during active duty service, or was incurred or aggravated during any period of active duty for training. In this regard, the Board notes that the periodic examinations currently available began suggesting hypertension-level blood pressure readings beginning in at least 1973. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). As such, there is an indication that the currently-diagnosed hypertension disorder may have begun or been aggravated during active duty service or training, and an opinion is necessary to adjudicate the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Similarly, as to the claim for an eye condition, including vision loss and cataracts, periodic Army National Guard examinations conducted during the period between 1958 and 1990 showed deterioration in the Veteran's visual acuity. For example, his uncorrected vision changed from 20/30 bilaterally in 1969, to 20/50 (right eye) and 20/70 (left eye) in 1973, and 20/200 (right eye) and 20/100 (left eye) in 1977. It is unclear whether this is refractive error, or due to other cause. The record currently reflects a 2004 diagnosis of cataracts, but as noted, the record is incomplete, and the Veteran has indicated that he was diagnosed with cataracts while on active duty. An examination to determine the current nature and severity of any vision disorder is warranted. Id. The Board notes that if the claimed disabilities did not begin during active duty service, it may be the case, depending on VA's efforts to verify the Veteran's service and obtain additional service treatment records, including examinations on entry into various periods of ACDUTRA, that the presumption of aggravation may not apply. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010) (holding that the presumption of aggravation is not applied to persons whose claims are based on a period of active duty for training). Nevertheless, he would not under those circumstances be prevented obtaining service connection if he could show (i.e., through records or the opinion of a medical examiner) that the disabilities worsened beyond the natural progression during ACDUTRA, and that there is a causal relationship between the worsening of the preexisting conditions and his active duty for training. Donnellan v. Shinseki, 24 Vet. App. 167, 173-74 (2010). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Verify all periods of the Veteran's active duty service, including ACDUTRA, for the period between 1958 and 1990. Such verification should include the dates, locations, and nature of the service. 2. Obtain and associate with the claims file any outstanding service treatment records from the Veteran's active duty and ACDUTRA. This attempt should include an effort to receive records for his second period of active duty. 3. Obtain and associate with the claims file any pertinent outstanding VA treatment records, including available records of the treatment indicated in the 1970 social work report. Records of all VA records should be sought. To the extent the records may be retired they should be obtained from the archives. If it is determined that records are unavailable, documentation of the attempts made to obtain the records should be set out in the claims folder. Appellant should be asked to identify where the treatment was rendered, including VA treatment, and the approximate dates of that treatment, to the extent needed. 4. Contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical provider who has treated him for his claimed conditions. After the Veteran has signed the appropriate release(s), those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 5. After all indicated records are retrieved and associated with the claims file, obtain an opinion concerning the etiology of the Veteran's hypertension disorder. The medical professional providing the opinion should review the claims file, this remand, and any pertinent records in the Virtual VA electronic file; the ensuing report should indicate that such a review occurred. The provider should opine as to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension disability began during his periods of active duty (January 1952 to December 1953 and August 1956 to January 1958) or during any verified period of ACDUTRA? (b) If the answer to question (a) is negative, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension disability worsened beyond the natural progression of the disease during any verified period of ACDUTRA? (c) If the hypertension disability did not begin, but did worsen beyond the natural progression, during any verified period of ACDUTRA as addressed in question (b), was that worsening caused by the period of ACDUTRA? (d) If aggravation is found present, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found present prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to ACDUTRA. The medical professional providing the requested opinion(s) must provide a full rationale for all opinions expressed. If he or she cannot provide any requested opinion without resorting to speculation, the report should indicate why that is so. If it is determined that an examination is needed, such examination should be scheduled. 6. After all indicated records are retrieved and associated with the claims file, provide the Veteran with an examination to determine the nature and etiology of any eye condition, including vision loss and cataracts. The examiner providing the opinion should review the claims file, this remand, and any pertinent records in the Virtual VA electronic file; the ensuing report should indicate that such a review occurred. After providing an examination in accordance with the latest worksheets for addressing vision disabilities, the examiner should provide opinions addressing the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that any eye condition began during his periods of active duty (January 1952 to December 1953 and August 1956 to January 1958) or during any verified period of ACDUTRA? (b) If the answer to question (a) is negative, is it at least as likely as not (a 50 percent or greater probability) that any eye condition worsened beyond the natural progression of the disease during any verified period of ACDUTRA? (c) If any eye condition did not begin, but did worsen beyond the natural progression, during any verified period of ACDUTRA, was that worsening caused by the period of ACDUTRA? (d) If aggravation is found present, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's eye condition found present prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to ACDUTRA. The examiner must provide a full rationale for all opinions expressed. If he or she cannot provide any requested opinion without resorting to speculation, the report should indicate why that is so. 7. The RO/AMC should review the resulting examination reports to ensure that they address all issues raised by this remand. If any report is lacking in any way, immediate corrective action should be taken. 8. Then, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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. 2012). _________________________________________________ MICHAEL D. LYON 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).