Citation Nr: 1328368 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-05 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for hypertension. (The appellant's claims of service connection for a bipolar disorder, and an initial compensable disability rating for service-connected sensorineural hearing loss of the left ear are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The appellant served in the Puerto Rico Army National Guard (PRARNG) wherein he had periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico, which denied the benefit sought on appeal. In July 2006, the appellant testified at a personal hearing over which a Decisions Review Officer presided while at the RO. A transcript of that hearing has been associated with the claims file. In May 2009, the Board denied service connection for hypertension, and the appellant subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the appellant, through his attorney, and the Secretary, VA, entered into and submitted a Joint Motion to Remand and Vacate the Board Decision (Joint Motion). In an Order dated that same month, the Court vacated the May 2009 Board decision and remanded the case to the Board for further appellate review consistent with the Joint Motion. In compliance with the Court's Order, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, in August 2010 for additional development. The AMC completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. In January 2012, the Board again denied service connection for hypertension, and the appellant subsequently appealed that decision to the Court. In October 2012, the appellant, through his attorney, and the Secretary, VA, entered into and submitted another Joint Motion. In an Order dated that same month, the Court vacated the January 2012 Board decision and remanded the case to the Board for further appellate review consistent with the Joint Motion. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). REMAND In the October 2012 Joint Motion, the parties determined that an adequate medical opinion had not been provided as to the precise etiology of the appellant's asserted hypertension. Historically, the appellant had several brief periods of active duty for training from March 1988 through March 2000. A hospital discharge summary dated in May 2000 shows that he had been given an Axis III diagnosis of hypertension, suggesting that such had already been diagnosed and controlled with treatment. In August 2010, the Board remanded the claim so as to obtain a medical opinion as to the etiology of the asserted hypertension. A VA examination report dated in June 2011 shows that the VA examiner opined that it was at least as likely as not that the appellant's hypertension related to his last period of active duty for training. The stated rationale was that because he was being treated for the condition at least by May 2000, the onset of the condition was within one year of his last active duty for training period. In this regard, the parties of the Joint Motion agreed that while stating the hypertension was manifested within one year period following the last period of active duty for training, the VA examiner did not provide an opinion as to the onset, aggravation, or etiology of the hypertension. Specifically, the VA examiner did not provide an opinion as to whether the hypertension had its onset during service or whether service aggravated a pre-hypertension condition. Thus, the appellant should be scheduled for new VA examination so as to determine the precise nature and etiology of his asserted hypertension. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records for his hypertension should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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 shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the appellant for any ongoing treatment of his asserted hypertension. All records obtained should be associated with the 's claims file. 2. The RO shall schedule the appellant for a VA examination, notify the examiner of the appellant's periods of active duty for training, and ask the examiner to determine the current nature and etiology of his hypertension. The claims file and a copy of this Remand must be reviewed by the examiner and that review should be indicated in the examination report. All appropriate tests and studies shall be conducted. If hypertension is identified, the examiner is requested to provide a medical opinion indicating whether it is likely as not (50 percent probability or greater) that hypertension had its clinical onset or increased in severity beyond its natural progress during any periods of active duty for training. The examiner is advised that the appellant is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the appellant's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for hypertension in the appellant's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. The RO will then readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The appellant need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ THOMAS J. DANNAHER 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).