Citation Nr: 1329189 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-17 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision, which, in pertinent part, a denied claim for service connection for hypertension. In June 2013, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the electronic claims file. 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 Unfortunately further development is necessary prior to adjudication of this matter. A review of the record reflects that complete service treatment records have not been fully obtained. The Veteran has alleged both in written contentions and in his Videoconference hearing that prior to being accepted into the service in February 1969, he was rejected by "draft physicals" (induction and/or preinduction examinations) in 1966 or 1967 at Maxwell Air Force Base in Montgomery, Alabama due to high blood pressure. He indicated that he was finally accepted into service in February 1969 after he moved to Detroit, Michigan. While the February 1969 induction examination and report of medical history are of record, the 2 draft physicals that he reported failing prior to February 1969 are not associated with the claims file. It is not clear whether the RO attempted to obtain these earlier physicals, which are pertinent for this appeal of service connection for hypertension on a pre-existing basis. Thus an attempt should be made to obtain any draft physicals prior to his induction in February 1969. Should the records prove to no longer exist the VA is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). A non-exhaustive list of documents that may be substituted for service medical records in this case includes: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians where a veteran may have sought treatment, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA Adjudication Procedure Manual, Manual M21- 1, Part III, paragraph 4.25(c) and 4.29 (Oct. 6, 1993). Additionally, the Board notes that the December 2007 VA examination conducted to address the etiology of his hypertension did not provide an adequate rationale for the opinion that the hypertension pre-existed service but was not aggravated by service. If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further addendum to the VA examination is indicated to address this matter on a secondary basis which has been raised by the record. This includes a claim for service connection for hypertension as secondary to service diabetes that is inferred in findings from an August 2009 VA examination for diabetes that gave an opinion that his hypertension was not caused by nor related to his diabetes, but failed to address whether aggravation was a factor. Additionally the Veteran's representative raised an issue of whether the hypertension was secondary to a service connected PTSD, by suggesting this had been adjudicated by the RO. Transcript at pg 10. Finally the Board notes that since this matter was last adjudicated in an April 2009 statement of the case, additional evidence pertinent to this matter has been associated with the record, with no waiver of RO review. Thus the RO should have opportunity to readjudicate this matter with consideration of all the pertinent evidence. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to obtain records of induction and/or preinduction examinations said to have been undertaken approximately in 1966 or 1967 at Maxwell Air Force Base in Montgomery, Alabama, or alternative records for the Veteran through official channels including the NPRC or any other appropriate source, and including the appellant, as per the procedures set forth in VA Adjudication Procedure Manual, Manual M21- 1, Part III, paragraph 4.25(c) and 4.29, if so warranted. Any and all records obtained should be associated with the claims file. If there are no records, the AOJ should so specifically find and the documentation used in making that determination should be set forth in the claims file. 2. Thereafter, only if the above development reveals that complete service treatment records continue to be unavailable, the AOJ must ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2013) is fully satisfied. In particular, VA must send the Veteran a corrective notice, that includes notice of the unavailability of complete service department records and an explanation of alternate forms of evidence, such as lay testimony, etc. as set forth in VA Adjudication Procedure Manual, Manual M21- 1, Part III, paragraph 4.25(c) and 4.29 (Oct. 6, 1993), that the Veteran can submit in support of his claim. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issue on appeal. 3. Thereafter, following the completion of the above entire claims file, to include a complete copy of the REMAND, should be returned to the examiner(s) who conducted the December 2007 VA examination for hypertension to obtain the following addendum opinions. If this examiner is no longer available the claims file should be associated with the appropriate medical professionals. After review of the evidence in the claims file and electronic record, the physician should offer an opinion, consistent with sound medical principles, as to the following: (a). Does the evidence clearly an unmistakably (undebatably) show that hypertension pre-existed the Veteran's period of military service? If any diagnosed hypertension is undebatably shown to have preexisted military service, explain why and indicate whether there was (1) a pathological worsening of the preexisting condition during any period of active service, and (2) if so, was the increase in severity due to the "natural progress" of the disorder or was the increase beyond that which would be considered the "natural progress" of the disorder? If the evidence indicates that there clearly (undebatably) was not an increase, please explain this. (b). For hypertension that is not shown to have clearly preexisted service, opine whether it is at least as likely as not that any disorder had its onset in any period of active service or is related to any event or episode of service. (It should be noted whether any current disability is the same as any experienced during military service.) (c). If hypertension is neither caused nor aggravated by service, the examiner should provide an opinion as to whether is it at least as likely as not (50 percent or greater probability) that hypertension was aggravated (permanently worsened beyond normal progression) by either his service- connected PTSD or diabetes mellitus. If the examiner finds hypertension is aggravated by PTSD or diabetes mellitus, the examiner should provide an opinion as to the baseline level of severity of the hypertension prior to the aggravation. The examiner should provide a medical rationale for the opinions provided. 4. Thereafter, the AMC/RO must readjudicate the claim. If any claim remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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). (CONTINUED ON NEXT PAGE) _________________________________________________ J. A. MARKEY 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).