Citation Nr: 1336843 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-05 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1967 to January 1970 and from February 1991 to April 1991. The Veteran additionally indicates that he had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) at various periods between 1970 and, most recently, from September 11, 2001 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues. The Veteran timely appealed that decision. This case was previously before the Board in January 2012, when it was remanded for further development. The case has been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With respect to the Veteran's claim for hypertension, he has essentially argued that on May 17, 1997, he had atypical chest pain and was taken to the hospital with high blood pressure at that time. He indicates that eventually he was released and followed up with his private physician, who put him on blood pressure medication at that time and which he has taken since that time. First, the Board notes that the Veteran's service personnel records of record do not address any period of service after 1993. Thus, the Board is unable to verify whether the Veteran was on ACDUTRA or INACDUTRA during the claimed May 1997 incident. Likewise, the Veteran has asserted that he was on security detail at McDill Air Force Base (AFB) from 1989 to 1994, during which time he was exposed to military aircraft noise from the flight line. Again, the Board is unable to verify which periods of service the Veteran had during that period of time, and whether such periods were ACDUTRA or INACDUTRA service. Additionally, the Board has reviewed the July 2002 military order with regards to the Veteran's National Guard service for Operation Firestorm/Safeharbor from November 4 to November 28, 2001. It appears that the Veteran was ordered to service by the Governor of the State of Florida, under the provisions of the Florida Constitution. It would appear that such service does not fall under the provisions of Federal service for which VA benefits would be authorized. The type of service the Veteran was on, and during which time periods matters immensely in this case, as ACDUTRA allows for service connection of diseases (e.g., hypertension and bilateral hearing loss) where INACDUTRA only allows for service connection for injuries or aggravation of injuries incurred during that particularized period of service. Thus, the Board finds that a remand is necessary with regards to both of the Veteran's claims in this case. On remand, the RO/AMC should specifically compile a complete list of dates that the Veteran was on ACDUTRA and INACDUTRA from 1970 to 2001, for the purposes of service under 38 U.S.C.A. § 1110. Regardless of the above list, the Veteran should be afforded VA examinations for both his hypertension and bilateral hearing loss. With regards to the hypertension, the Veteran has indicated that he was on ACDUTRA during that period of time. If the RO/AMC is unable to specifically verify whether the Veteran was on ACDUTRA or INACDUTRA at that time, the Veteran should be given the benefit of the doubt in this case, as medical records do demonstrate an episode with respect to atypical chest pain and elevated blood pressure on May 17, 1997, which the line of duty report shows occurred in the line of duty. The Veteran should be afforded a VA examination as to his hypertension. Likewise, the Veteran is shown to have active military service from February to April 1991, at McDill AFB; his Form DD-214 for that period indicates that his military occupational specialty (MOS) for that period was law enforcement specialist. The Veteran has stated that he was exposed to aircraft noise as a result of his security duties at McDill AFB, and such aircraft noise is conceded by the Board at this time as of the types, places and circumstances of his service. See 38 U.S.C.A. § 1154(a) (West 2002). Accordingly, VA examinations should be obtained for both his claimed disorders on remand. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Finally, the Veteran has indicated that his private treatment provider in 1997 prescribed him blood pressure medication and that he has taken such since that time. The private treatment records in the claims file begin in December 2002, when hypertension is noted in the Veteran's past medical history; the first diagnosis of hypertension is noted in a March 2003 private record. The Board notes the significant period of time between the May 1997 incident noted in his military records and the December 2002 physical noting a history of hypertension. Such a significant period of time between service and diagnosis/notation/treatment of a disorder may weigh against the Veteran's claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Thus, on remand, the Veteran should be asked to provide significant detail with regards to private and VA treatment that he may have received since 1970, particularly since May 1997 with regards to his hypertension. He should additionally indicate any ongoing private or VA treatment he may be receiving so that those records may 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: 1. The RO/AMC should compile an extensive and exhaustive listing of the Veteran's post-1970 periods of ACDUTRA and INACDUTRA, to specifically include the periods from 1989 to 1994, as well as which specific designation the Veteran was serving on May 17, 1997. The RO/AMC should additionally determine whether the noted period from November 4, 2001 to November 28, 2001 qualifies for ACDUTRA or INACDUTRA status under 38 U.S.C.A. § 1110, for purposes of authorization for VA benefits. 2. Obtain any relevant VA treatment records from the Tampa VA Medical Center, or any other VA medical facility that may have treated the Veteran, since January 2012 and associate those documents with the claims file. 3. Ask the Veteran to identify any VA or private treatment that he may have had for his hypertension and bilateral hearing loss, which is not already of record, since 1970, and to particularly include any private treatment for his hypertension since May 1997. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA audiological examination in order to determine the nature and etiology of his bilateral hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran's bilateral hearing loss more likely, less likely, or at least as likely as not (50 percent or greater probability) is the result of military service, to include aircraft exposure during his 1991 period of active service, as well as any periods of ACDUTRA at McDill AFB from 1989 to 1994; the examiner should consider the compound/aggregate effect of this repeated noise exposure during those periods of active service and ACDUTRA. The examiner should address any of the Veteran's lay statements of record regarding onset, etiology or continuity of symptomatology of his hearing loss. The examiner should additionally address the multiple periodic audiological military examinations noted in the Veteran's National Guard records. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any hypertensive disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should then opine as to whether The Veteran's hypertension is more likely, less likely, or at least as likely as not (50 percent or greater probability) caused by his military service, to include active service from 1967-70 and in 1991, as well as any ACDUTRA service in May 1997. The examiner should additionally discuss whether any noted blood pressure readings during military service/ACDUTRA, or within one year of separation from active service in 1970 and 1991, demonstrate initial onset of his claimed hypertension, and if so, whether such has been chronic and continuous from that time. The examiner should additionally address the Veteran's contentions that the May 1997 incident was the initial manifestations of his hypertensive disorder and that his hypertension was diagnosed by a private physician after the incident and that he has been on blood pressure medication since that time. The examiner should also discuss the noticeable absence of any hypertension diagnosis prior to December 2002 currently in the record. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for hypertension and bilateral hearing loss. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). 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). _________________________________________________ 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) (2013).