Citation Nr: 1332292 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-43 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury. 2. Entitlement to service connection for a bilateral foot disorder. 3. Entitlement to service connection for arthritis of all joints. 4. Entitlement to service connection for a jawbone disorder. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active honorable military service from January 16, 1975 to December 15, 1980. This was followed by a period of dishonorable service from December 16, 1980 to November 25, 1986, which is not qualifying for VA benefits as found by an April 2009 RO administrative decision. See 38 C.F.R. § 3.12 (d)(4) (2013). Under this regulation, the Veteran's discharge for that period of service is considered dishonorable. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2009 and May 2010 rating decisions of the Winston-Salem RO. A review of the Virtual VA paperless (electronic) claims processing system reflects that there are no additional records that are not already associated with the 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 The Board finds the matters on appeal must be remanded for additional development of the claims. The Veteran identified Dr. Uday Chauhan as a treatment provider for his claimed disabilities. The RO sought these records. An August 2008 Report of Contact indicates the physician faxed the records twice and mailed them once, although VA had not shown them as having been received. Another Report of Contact dated in September 2008 indicates the medical records were received; however, they are not associated with the claims file nor are they located in the Virtual VA paperless processing system. The RO must take whatever steps necessary locate these records. The Veteran obtained a copy of the service treatment records (STRs) in VA's possession and he asserts that pertinent records from 1972 to 1975 when he was stationed at Norfolk, Virginia, with St. Clair Fleet Marine Barracks are not included. His dental records from service, in particular, which are pertinent to one of his claims, are also not associated with the claims file. Since the case is already being remanded, the RO should make additional requests for these records. The Veteran was afforded a VA examination for hypertension in May 2009 and while a diagnosis was provided there was no opinion as to its etiology or onset. In light of his current diagnosis and service treatment records in November 1980, which was still during his honorable period of service, reflect elevated blood pressure reading, an opinion is needed. The RO did not provide the Veteran with a VA examination to determine the etiology of his arthritis but given he injured his right elbow as a result of a motor vehicle accident in service in August 1979 and he has a current diagnosis of right elbow arthritis an opinion is needed. Finally, the Veteran has stated that he started taking medication for hypertension shortly after his separation from service. See VA Form 9, dated October 10, 2010. He has also reported that he was treated by Dr. Frank for his feet. See VA Form 21-4138, dated August 27, 2007. These records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Locate the copies of private treatment records for Dr. Uday Chauhan sent to the RO in 2008. If after an exhaustive search the records are not located, obtain copies from either the Veteran or the healthcare provider. 2. Take appropriate action to obtain the Veteran's complete service treatment records, to include all clinical records; any records dated from 1972 to 1975 when the Veteran was stationed at Norfolk, Virginia with St. Clair Fleet Marine Barracks; and his service dental records. 3. Make arrangements to obtain the Veteran's complete treatment records from Dr. Frank. 4. The Veteran has stated that he started taking medication for hypertension shortly after his separation from service. He should be asked to identify the medical care provider that prescribed this medication, and his complete treatment records from this provider should be obtained. 5. After completing the above development, schedule the Veteran for a VA examination to determine the likely etiology of his hypertension. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this remand must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All findings should be reported in detail. * The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the Veteran's hypertension had its clinical onset during active service (specifically, only his period of honorable service prior to December 16, 1980) or is otherwise related to any in-service disease, event, or injury, to include the stress of training recruits for military duty. * The examiner must explain the reasoning used to render the opinion and discuss the elevated blood pressure reading(s) noted during his honorable service and their significance. * A complete rationale must be offered for all opinions. 6. Schedule the Veteran for a VA orthopedic examination. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this remand must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. * All necessary tests deemed necessary should be scheduled and the findings should be reported in detail. * The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any currently diagnosed right elbow disorder, to include arthritis, had its clinical onset during active service or is otherwise related to any in-service disease, event, or injury, to specifically include the injury incurred in 1979 and/or the Veteran's duties as a drill instructor when he marched, conducted field maneuvers, carried heavy equipment, and did infantry training. * The examiner must explain the reasoning used to render the opinion and discuss the right elbow injury noted in service and its significance or lack thereof. * If arthritis of any other joint is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that it had its clinical onset during active service or is otherwise related to any in-service disease, event, or injury, to include the Veteran's duties as a drill instructor when he marched, conducted field maneuvers, carried heavy equipment, and did infantry training. * A complete rationale must be offered for all opinions. 5. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Finally, after completing the above, and any other development deemed necessary based on any additional evidence received, readjudicate the claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ P.M. DILORENZO 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).