Citation Nr: 1323007 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-00 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a bilateral shoulder disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1954 to January 1957. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board most recently remanded the above-cited issues in November 2012. Some of the requested actions were taken and the case has since been returned to the Board for adjudication. 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 Veteran if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary regarding the Veteran's service connection claims for hypertension, a bilateral shoulder disorder, and a back disorder. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In its November 2012 remand, the Board specifically requested that the RO/AMC obtain the Veteran's outstanding treatment records dated from 1974 to 1990. The AMC attempted to comply with the remand directives by sending the Veteran a letter in November 2012 requesting that he identify where he sought treatment from 1974 to 1990. The Veteran responded to this letter the same month indicating that from 1974 to 1990, he sought treatment at the VAMC in Memphis, Tennessee. It does not appear that the AMC made any attempts to retrieve these identified VA treatment records. Even if attempts were made and were unsuccessful, there is no copy of a negative reply associated with the claims file. Given the foregoing, the Board finds that the AMC did not substantially comply with the November 2012 remand directives. As such, the Veteran's case should be remanded to attempt to obtain these outstanding VA treatment records from the Memphis VAMC. If these records are received, then the claims files should be forwarded to the February 2013 VA examiners for addendums. With respect to the hypertension issue only, it appears that the Veteran is alternatively contending he had problems with high blood pressure prior to service and it was aggravated during active duty. These contentions are documented in the February 2013 VA examination report. It is important to note that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board finds that upon remand, a supplemental opinion to the February 2013 VA examination report should be obtained with respect to whether the Veteran's hypertension clearly and unmistakably preexisted service and, if so, whether it was permanently aggravated by service beyond its natural progression. Accordingly, the case is REMANDED for the following action: (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. The RO/AMC should attempt to obtain VA treatment records dated from 1974 to 1990 from the VAMC in Memphis. All attempts to retrieve these records should be documented in the claims file. If there is a negative reply, the RO/AMC is asked to inform the Veteran that these records are not available and request that he submit copies of any treatment records from that timeframe that he may have in his possession. 2. If any additional records are obtained, the Veteran's claims file, and any pertinent evidence in Virtual VA, should be again presented to the February 2013 VA examiners. They are asked to provide addendums based upon review of the newly received records. 3. Regardless of whether the 1974 to 1990 VA treatment records are obtained, the Veteran's claims file (and any pertinent evidence in Virtual VA) should be presented to the February 2013 VA examiner who addressed the Veteran's hypertension. After reviewing the file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed hypertension was caused or aggravated by his military service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In addition, the examiner is requested to opine as to whether there is clear and unmistakable evidence that any diagnosed hypertension preexisted service and, if so, whether such disability was permanently aggravated by service beyond the natural progression of the disability. The examiner should provide a complete rationale for any opinions provided. 4. After the above is complete, readjudicate the Veteran's claims. If one or more of the claims remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 case 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). _________________________________________________ C. TRUEBA 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).