Citation Nr: 1325049 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-36 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine, with a right L5 radiculopathy. 3. Entitlement to a compensable evaluation for diverticulitis with hypertrophic haustral and a scattered left sigmoid colon. 4. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD), with hiatal hernia and gastritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to July 1975 and from February 2005 to May 2006. Further, the record indicates the Veteran had additional service in the Reserves. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in August and October 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in April 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. In July 2010, the Board, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of service connection for hypertension. The Board also remanded the claims for higher initial evaluations for the lumbar spine disorder, diverticulosis, and GERD for further development to include new VA medical examinations to evaluate the nature and etiology of these disabilities, as well as readjudication of the claims once the development was completed. The Veteran appealed the July 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). By an October 2011 Order, the Court, pursuant to a joint motion for remand (JMR) vacated the Board's July 2010 decision to the extent it declined to reopen a clam of service connection for hypertension, and remanded the claim to the Board for action consistent with the terms of the joint motion. The record reflects the Board subsequently determined that new and material evidence had been received to reopen the claim of service connection for hypertension, and the claim was reopened. Further, the Board remanded the underlying service connection claim for further development to include verification of the exact dates of the Veteran's Reserve service, and a VA medical examination to address the origins of his hypertension. For the reasons detailed below, 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. As an additional matter, the Board observes that electronic, paperless records in the virtual VA system include an August 2011 RO letter to the Veteran in which it was acknowledged he submitted a Notice of Disagreement (NOD) to rating decisions promulgated in August 2010 and February 2011. However, the actual NOD itself is not of record. As such, the Board cannot know what issue(s) the Veteran is actually appealing. Nothing else in the record available for the Board's review, to include virtual VA, shows that any appellate claim has been perfected or certified to the Board other than what is listed on the title page above. If the record subsequently shows additional claim(s) are before the Board, they will be adjudicated once that information becomes available. REMAND In May 2010 the Board remanded the appeal to, among other things, provide the Veteran with VA examinations to obtained needed medical opinions as to the origins of his hypertension and the current severity of his low back disability, diverticulitis, and GERD. Moreover, post-remand rating decisions found in the Virtual VA claims file show that the Veteran was provided VA examinations in October 2010, November 2010, September 2011, and January 2013. However, none of these VA examination reports are found in the Virtual or paper claims file. Moreover, from reading the post-remand rating decisions it does not appear that any of the examinations ordered by the Remand where conducted. In this regard, the Veteran's accredited representative contended in its May 2013 written brief presentation that none of the action ordered by the Board in July 2012 Remand had been sent out for action yet. Given the above history, the Board finds that a remand is required to associate the missing VA examination reports with the claims file because they might contain relevant evidence and to have new VA examinations of the Veteran carried out with these examination reports being associated with the claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that "a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand."). Similarly, the Board remanded the claims in May 2010 to ascertain the dates of the Veteran various periods of service with the Reserves, to include his dates of active duty, active duty for training (ACDUTRA) and inactive duty training. However, this development also does not appear to have been undertaken while the appeal was in remand status. Therefore, another remand is also needed to carry out this development. Id. The Veteran appears to receive ongoing treatment for his hypertension as well as his service connected low back disability, diverticulitis, and GERD. Therefore, while the appeal is in remand status these records should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(d) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The AMC/RO should obtain and associate with the record, either physically or electronically, copies of the October 2010, November 2010, September 2011, and January 2013 VA examinations. All actions to obtain the requested information should be documented fully in the claims folder. If the information cannot be located or no such information exists, a memorandum of unavailability should be associated with the claims folder and the Veteran should be provided with a copy of that memorandum. 2. The AMC/RO should obtain and associate with the record, either physically or electronically, all of the Veteran's VA treatment records, including from the Birmingham VA Medical Center, from July 2007 to the present that have not as yet been associated with the claims folder. All actions to obtain the requested information should be documented fully in the claims folder. If the information cannot be located or no such information exists, a memorandum of unavailability should be associated with the claims folder and the Veteran should be provided with a copy of that memorandum. 3. The AMC/RO should obtain the names and addresses of all other medical care providers who have treated the Veteran for his lumbar spine disorder, diverticulosis, GERD, and hypertension since 2007. After securing any necessary release, the AMC/RO should obtain those records not on file. All actions to obtain the requested information should be documented fully in the claims folder. If the information cannot be located or no such information exists, a memorandum of unavailability should be associated with the claims folder and the Veteran should be provided with a copy of that memorandum. 4. Contact the Veteran's Reserve component and request a statement as to his exact dates of active duty, ACDUTRA, and inactive duty training since enlisting in the Reserves. All actions to obtain the requested information should be documented fully in the claims folder. If the statement cannot be obtained, a memorandum of unavailability should be associated with the claims folder and the Veteran should be provided with a copy of that memorandum. 5. The Veteran should be afforded an examination to evaluate the nature and etiology of his hypertension. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should provide answers to the following questions: a. Is there clear and unmistakable evidence that the Veteran's hypertension preexisted his June 1973 to July 1975 period of service? b. If there is clear and unmistakable evidence that the Veteran's hypertension preexisted his June 1973 to July 1975 period of service, is there clear and unmistakable evidence that his hypertension was not aggravated beyond its natural course by his June 1973 to July 1975 period of service? c. If there is not clear and unmistakable evidence that the Veteran's hypertension preexisted his June 1973 to July 1975 period of service, is it at least as likely as not (50 percent probability or more) that it was caused by his June 1973 to July 1975 period of service or has continued since that service? d. If there is not clear and unmistakable evidence that the Veteran's hypertension preexisted his June 1973 to July 1975 period of service, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year following this period of service? e. Is there clear and unmistakable evidence that the Veteran's hypertension preexisted his February 2005 to May 2006 period of service? f. If there is clear and unmistakable evidence that the Veteran's hypertension preexisted his February 2005 to May 2006 period of service, is there clear and unmistakable evidence that his hypertension was not aggravated beyond its natural course by his February 2005 to May 2006 period of service? g. If there is not clear and unmistakable evidence that the Veteran's hypertension preexisted his February 2005 to May 2006 period of service, is it at least as likely as not (50 percent probability or more) that it was caused by his February 2005 to May 2006 period of service or has continued since service? h. If there is not clear and unmistakable evidence that the Veteran's hypertension preexisted his February 2005 to May 2006 period of service, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year following this period of service? In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability in-service and since that time even when not documented by his medical records. In providing answers to the above questions, the examiner is advised that he cannot rely solely on negative evidence. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms. In providing answers to the above questions, the examiner is advised that the term "clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 6. The Veteran should also be scheduled for an examination by an appropriate VA examiner to determine the nature and current level of severity of his service-connected degenerative joint disease of the lumbar spine, with a right L5 radiculopathy. The claims folder must be made available to the examiner. All indicated tests and studies deemed appropriate by the examiner, including x-rays, electromyography (EMG), and nerve conduction studies, must be accomplished and all clinical findings should be reported in detail. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his low back disability. In addition to any other information, the examiner should conduct complete range of motion studies, with specific citation to the forward flexion of the thoracolumbar spine, and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of flexion and/or extension. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of flexion and/or extension during the flare-ups. In addition, the examiner should comment on the number of weeks of incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician) the Veteran has experienced do to his service connected low back disorder. Lastly, the examiner should comment on any adverse neurological symptomatology caused by his service connected low back disorder and, if present, if that adverse symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe." 7. After obtaining any additional records to the extent possible, the Veteran should be afforded examinations to determine the nature and current level of severity of his service-connected diverticulitis with hypertrophic haustral and a scattered left sigmoid colon, and GERD. The claims folder should be made available to the examiner. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his disabilities. A complete rationale for all opinions expressed must be provided. 8. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, supra. 9. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. As to the claims for higher ratings, such readjudication should consider staged ratings if warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefit since the last SSOC, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).