Citation Nr: 1329914 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-15 260A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension and a lumbar spine disorder. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2012. A transcript of that hearing is of record and associated with the claims folder. In an August 2012 decision, however, the Board denied these claims, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court). In a January 2013 Order, the Court granted a Joint Motion to vacate the Board's decision denying these claims and to remand them to the Board for further proceedings and compliance with directives specified in the Joint Motion. 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 In a January 2013 Order, the Court granted a Joint Motion in which the parties agreed that the Veteran's service connection claims for hypertension and a low back disorder should be remanded. With respect to the hypertension claim, the parties to the Joint Motion agreed that the Board relied upon impermissible factors to discount the competency and credibility of the Veteran's lay statements that he was diagnosed with hypertension within five months of his service discharge. The parties found that to the extent the Board assumed the competency of the lay statement, credibility of that statement was discounted because the Veteran did not present any evidence other than his own assertions. Citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the parties determined that the Board may not discount the credibility of lay evidence merely because it is not accompanied by confirmatory medical evidence. In addition, the parties found that it was equally impermissible for the Board, in denying the claim, to rely on the fact that the Veteran had delayed filing his claim of entitlement to service for hypertension for nearly 40 years, citing Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the "Board's statement that, given the nature of the appellant's injury, some documentation in his SMRs is expected . . . [is] a medical determination as to the relative severity, common symptomatology, and usual treatment" of the injury without "any medical evidence to corroborate its finding"). The parties found that such a conclusion required the assumption that, like with the delayed medical treatment in Kahana, a credible individual would never delay in filing a claim of entitlement to benefits in the face of continued symptomatology. In other words, the Board essentially rendered its own prohibited medical determination. As a result the parties to the Joint Motion requested that the matter be remanded in order for the Board to provide an adequate statement of reasons or bases for its determination. In addition, in a July 2013 statement submitted by his representative, the Veteran urged that the matter be remanded for a VA medical opinion on this matter. See Informal Hearing Presentation dated July 8, 2013. With respect to the low back claim, the parties found that VA had not complied with its duty to assist under 38 U.S.C.A. § 5103A by making reasonable requests for potentially relevant records. In this regard, the parties noted that the RO requested VA treatment records from July 1969 to December 1979, but received a negative response from the Southeast Louisiana Veterans Health Care System. However, the Veteran has since clarified that he underwent back surgery and was placed in a body cast for 30 days by a VA hospital in New Orleans. The parties found that the Veteran's clarification triggered the VA's duty to seek hospital rather than outpatient, records for the relevant time. Based on the foregoing, and consistent with the Court's January 2013 Order, the Board finds that these matters should be remanded, and that upon remand, the Veteran should be provided a VA examination in connection with the hypertension claim, and that the RO should request the VA hospital records noted above. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claims that may not be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his low back disorder since service. This should specifically include a request to the appropriate VA Medical Center in New Orleans for all inpatient records from July 1969 to December 1979. Updated current VA clinical records should also be obtained. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. Concerning the issue of entitlement to service connection for a lumbar spine disorder, upon review of the evidence that may be obtained above, undertake any additional development deemed necessary, including a new VA medical examination and/or opinion. 3. Then, schedule the Veteran for a VA examination to determine the onset and etiology of his current hypertension. The claims file must be made available to the examiner for review of the case, and the examination report should include a notation to the effect that this record review took place. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms as well as any medication prescribed. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that hypertension was incurred or otherwise had its onset during the Veteran's period of active duty. In answering this question, examiner must acknowledge the Veteran's statement asserting that he was diagnosed with hypertension in November 1969, five months after service discharge. The examiner should specifically discuss whether there is any medical reason to accept or reject the proposition that the Veteran was diagnosed with hypertension within the first post-service year following his discharge from service. (The examiner should remain mindful of the fact that the Veteran is competent to say he was diagnosed with hypertension within a year of service discharge, even if it is not actually documented in the record.) The medical reasons for the opinion provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (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). _________________________________________________ JONATHAN B. KRAMER 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).