Citation Nr: 1334896 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-05 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to June 1976. He also served in the United States Army National Guard from December 1982 to March 2001, with unverified periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND In January 2012, the Board remanded the Veteran's claim for additional development. In pertinent part, the Board directed that the RO/AMC contact the National Personnel Records Center (NPRC) or any other appropriate source to obtain the Veteran's service personnel records and any outstanding service treatment records. In addition, the Board instructed that the RO/AMC attempt to verify the exact dates of each period of the Veteran's ACDUTRA with the United States Army National Guard through all appropriate sources, to include a request of pay records from the Defense Finance and Accounting Service (DFAS) that indicate the Veteran's duty status. Thereafter, the Board directed that the RO/AMC schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The record shows the AMC sent a request to the NPRC in January 2012 and that a response was received in February 2012. However, the record indicates the request was limited to the records concerning the Veteran's active duty service from July 1974 to June 1976 and therefore did not include a request for records pertaining to his ACDUTRA periods of service. In addition, it appears the AMC specified that the request was connected to a claim involving posttraumatic stress disorder. Furthermore, the record does not demonstrate that a request was sent to DFAS for the Veteran's pay records to determine the exact dates of his ACDUTRA. Since this claim is dependent upon the nature of the Veteran's service at the time of the onset of disease, the exact dates of the Veteran's ACDUTRA are necessary to properly adjudicate the claim of service connection. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, a remand is warranted to fully comply with the Board's remand directives. In addition, although the Veteran underwent VA examination in January 2012 and the VA examiner provided an addendum opinion in April 2012, the VA examiner's opinion was not predicated on a review of the specific dates of the Veteran's periods of ACDUTRA. As a result, the VA examiner's opinion is inadequate for purposes of determining service connection in this case. Here, the RO must first determine the exact dates of the Veteran's periods of ACDUTRA. Then, an additional VA examination should be scheduled to ascertain whether the Veteran's hypertension is etiologically related to active duty or a period of ACDUTRA. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following actions: 1. Contact the National Personnel Records Center or any other appropriate source to obtain the Veteran's service personnel records and any outstanding service treatment records. The proper request code must be utilized and the periods of service identified must include the Veteran's active duty and his service in the United States Army National Guard. 2. Then, determine the specific dates for when the Veteran served on ACDUTRA in the United States Army National Guard. Based on this review, the RO must create a timeline of these dates and associate this timeline with the Veteran's claims file. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether his current hypertension is related to active duty or his ACDUTRA service. The claims file must be made available to the examiner, and all pertinent symptomatology and findings must be reported in detail. Following a review of the evidence, to include the summary of the Veteran's service, his confirmed periods of active duty and ACDUTRA, the clinical examination, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension is related to his active duty service from July 1974 to June 1976 or that it began during a period of verified ACDUTRA with the United States Army National Guard. A complete rationale for any opinion expressed must be included in the examination report. 4. After the development requested above has been completed, re-adjudicate the claim of entitlement to service connection for hypertension. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).