Citation Nr: 1338869 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-02 188 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California ISSUES 1. Entitlement to service connection for residuals of benign tumor excision, to include as due to exposure to herbicides. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1970 to October 1971. This appeal to the Board of Veteran's Appeals (Board) arose from a March 2008 rating decision in which the RO denied service connection for the identified disabilities. In March 2009, the Veteran filed a notice of disagreement (NOD) as to this denial. The RO issued a statement of the case (SOC) in November 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) in January 2012. On his November 2011 Form 9, the Veteran requested a hearing before the Board. He was scheduled for an August 2012 hearing and was notified of this hearing in a June 2012 letter. In August 2012, the Veteran withdrew the hearing request in writing. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. The Virtual VA folder was reviewed in connection with these claims. For reasons expressed below, the claims on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND Although the Board regrets the additional delay in this appeal, it is constrained by the fact that proper adjudication requires further development. In a claim for disability compensation, VA will make efforts to obtain the claimant's service treatment records (STRs), if relevant to the claim. 38 C.F.R. § 3.159(c)(3). When records have been lost, VA has a heightened duty to assist the appellant in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the present case, in September 2007, VA sent a letter to the Veteran informing him that his STRs had been lost. The record contains a limited number of service records provided by the Veteran, including his induction and separation examinations. The Veteran contends that he has hypertension as a result of his active service. Here, the record reflects that the Veteran has been diagnosed with hypertension during the appeal period. At a September 2010 VA examination for a heart condition, the examiner stated that the Veteran was "Hypertensive probably for years and started medication since 2000." The Veteran has asserted that his hypertension, as diagnosed by current standards, began during service. In his March 2012 VA Form 9, he stated, "I had predominant readings of 160 over 90 in service and after. At that time 40 years ago the standard for diagnosis for [hypertension] was above those readings." As noted above, the record does not include the Veteran's complete STRs. The Veteran's induction and separation examination reports include blood pressure results; however, these findings are illegible. Also, the Veteran contends that he has spinal tumors that were caused by exposure to herbicides during his service in Vietnam. The Veteran states that, in 1992, he had benign schwannoma tumors excised from the L-2 area of his spine. He states that he has developed another tumor in the same area. It appears that there are medical records that have not been associated with the claims file. Specifically, in October 2007, the Veteran submitted a VA Form 21-4142 identifying five locations of medical records relevant to his claims. The Veteran reported that he was treated at Kaiser in Vallejo, California, from 1980 to the present for general medical concerns; Kaiser in Sacramento, California, from 1989 to the present for tumors in his back; Kaiser in Vallejo, California, from 2005 to the present for a heart condition; the VA clinic at Travis Air Force Base from 2006 to the present for "related problems"; and the U.S. Navy in the San Francisco Bay Area from 1972 to 1974. The Veteran reported that he worked for the U.S. Navy as a civilian fire chief and firefighter from 1972 to 2005 and was given annual physicals during his employment. The RO requested that Kaiser provide the Veteran's treatment records, but only dating from 2009. There was no request made for the Veteran's complete private medical records. In addition, there was no request made as to the Veteran's medical records during his civilian employment with the U.S. Navy. As these records are pertinent to the issues on appeal, the RO should take appropriate steps to obtain them, following the current procedures prescribed in 38 C.F.R. § 3.159. The claims file currently includes outpatient treatment records from the VA Medical Centers (VAMC) in Martinez, California, and Fairfield, California, dated to April 2011; however, more recent records from this facility may exist. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since April 2011, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Also, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, notifying him that he has a one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 (West 2002), 5103A; 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted (by the VCAA (to include arranging for the Veteran to undergo examination, or otherwise obtaining appropriate medical opinion(s), if appropriate) prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Undertake appropriate action to obtain U.S. Navy employment records dated between 1972 and 2004. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Obtain all VA records of evaluation and/or treatment of the Veteran, to include from the Martinez VAMC (dated since April 2011) and the Fairfield VAMC (dated since April 2011). Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization for it to obtain, any outstanding, pertinent private medical records-to include records from Kaiser Permanente in Vallejo, California, and Sacramento, California, dated since 1980. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid further remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted (to include arranging for examination or to otherwise obtain medical opinion evidence, if appropriate), adjudicate the matters on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication) and legal authority. 7. If any benefit sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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).