Citation Nr: 1338932 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-21 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a kidney condition, to include as secondary to hypertension. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1974, and then again from February to March 1991. He had additional 11 years, 7 months prior inactive service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran's claim for service connection for hypertension was previously denied in a May 2000 rating decision and the current claim was characterized as a claim to reopen. Subsequent to the July 2010 rating decision, VA received the Veteran's Army National Guard and Army Reserve service treatment records dated from August 1983 to August 1993. These service department records were not associated with the claims file at the time of the May 2000 rating decision. The records, in particular a March 1991 separation examination, indicate that the Veteran was taking prescribed medication for hypertension. Thus, the service treatment records are relevant to his claim. As relevant service department records were not added to the claims folder, the previously denied claim must be reconsidered, not reopened. 38 C.F.R. § 3.156(c). Accordingly, the issue has been recharaceterized. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. 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 light of the receipt of relevant service treatment records which were not previously associated with the claims file, the claim must be reconsidered on the merits. The Veteran asserts that his history of hypertension was first noted during a pre-induction examination in March 1971 and persisted throughout his military career. He further seeks service connection for a kidney condition as secondary to his hypertension. The available service treatment records include a March 1971 pre-induction examination which showed high blood pressure readings, but the Veteran was deemed suitable for service. The report of an April 1974 separation examination does not include any reference to high blood pressure; there was no contemporaneous Report of Medical History. The Veteran's claims file contains an incomplete record of his military service history, which includes periods of service with the U.S. Army, U.S. Army National Guard and U.S. Army Reserve. The Veteran's DD-214 reflects that he served with the Army Reserve when he was called to active duty service in February 1991 and notes 11 years, 7 months prior inactive service. His service treatment records additionally reflect that he served in the National Guard sometime between his periods of active service in June 1974 and February 1991. Verification of each period of claimed military service, to include whether each period was active military service, active duty for training (ACDUTRA) or inactive duty training (INACDUTRA), is needed prior to adjudication of the claim. The determination of whether a statutory presumption of service connection should be considered depends on accurate information concerning the duty status. The presumption of sound condition at entrance into service or presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service do not apply to periods of ACDUTRA or INACDUTRA. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). Additionally, any outstanding service treatment records for the Veteran's periods of active duty, ACDUTRA and INACDUTRA should be located and associated with the Veteran's claims file. The record includes a letter dated in December 2009 from his treating physician, Dr. J. J., stating that the Veteran has a history of hypertension dating back to his first admission to military service. A medical opinion should be obtained to determine whether the Veteran's diagnosed hypertension first manifested during a period of service, was aggravated by his period of active duty or is otherwise related to service, to include any period of ACDUTRA or INACDUTRA. Additionally, an opinion should be obtained to determine whether the Veteran's kidney condition, diagnosed in an August 2006 private treatment record submitted by the Veteran as chronic stage I kidney disease, was caused or aggravated by his hypertension. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Department of the Army, the Veteran's Army Reserves unit, and any other appropriate sources to verify all dates and types service, including active duty service with the U.S. Army, as well as ACDUTRA and INACDUTRA with the U.S. Army Reserve and Army National Guard. Attempt to locate any outstanding treatment records for all periods of service including ACDUTRA and INACDUTRA. All records and responses received should be associated with the claims file. 2. After completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of the Veteran's hypertension. The claims folder and any pertinent records should be made available to the examiner for review. The AMC/RO should identify for the examiner the dates and types of the Veteran's service. After reviewing the entire record and examining the Veteran, the VA examiner should provide an opinion as to the following: (a) Does the evidence of record clearly and unmistakably show that the Veteran hypertension that existed prior to his entry onto active duty in 1971? (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting hypertension was not aggravated by service or that any increase in disability was due to the natural progression of the disease? In answering this question, the examiner should comment on the elevated blood pressure readings noted in 1971 and the blood pressure readings noted at separation in 1974. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's hypertension had its onset in service between 1971 and 1974? (d) If the answer to (d) is no, is it at least as likely as not that the Veteran's hypertension was incurred or aggravated during another period of service and if aggravated, that such worsening was beyond the natural progression of the disease and that the worsening was caused by the period of ACDUTRA. (e) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran has a kidney condition that is caused or aggravated by hypertension. The VA examiner is requested to provide a thorough rationale for any opinion provided. 3. Thereafter, readjudicate the issues on appeal based on the entirety of the evidence of record. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and they should be afforded an appropriate opportunity to respond. The case should then be returned to the Board, as warranted, for appellate disposition. 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. 2013). _________________________________________________ M. E. LARKIN 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).