Citation Nr: 1406339 Decision Date: 02/12/14 Archive Date: 02/24/14 DOCKET NO. 10-36 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for jungle rot, bilateral feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971 with additional service in the Naval Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claimed benefits. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The records contained therein have been reviewed. The Veteran provided testimony during a hearing before the undersigned at the RO in April 2013. A transcript is of record. 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 During the Board hearing, the Veteran reported treatment for the above claimed disabilities; however, no such treatment records have been obtained nor have the treatment providers been identified. VA has a responsibility to obtain outstanding records of VA and private treatment once there is actual or constructive knowledge of the availability of pertinent reports. 38 U.S.C.A. § 5103A(b) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Massey v. Brown, 7 Vet. App. 204 (1994). These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2013). The Board advises the Veteran that records of ongoing treatment for each of the claimed disabilities may help his claim. In addition, the Veteran submitted a claim for compensation dated in January 1971. The records involving such a claim are not in the claims file, which raises the possibility that another claims file exists. The Board requests that all necessary attempts be made to obtain an outstanding permanent or temporary file associated with this Veteran. The Veteran claims exposure to herbicides during in-country service in the Republic of Vietnam (Vietnam). An attempt must be made to verify such service and to obtain any outstanding service treatment records. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. During the Board hearing, the Veteran reported that his low back symptoms, hypertension, and bilateral feet symptoms began during service and have continued since. Service treatment records demonstrate a diagnosis of low back strain following a basketball injury in March 1970 as well as blood pressure reading of 180/80. Therefore, the Board finds that he should be provided with a VA examination to determine if any currently diagnosed low back, hypertension, or bilateral feet disabilities were incurred during or as a result of service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all sources of relevant treatment and to provide releases authorizing VA to obtain all records of private treatment, including treatment referenced during the Board hearing. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. The procedures outlined in 38 C.F.R. § 3.159 must be followed and all negative results must be documented. 3. Contact the National Personnel Records Center (NPRC) and any other appropriate source to verify the Veteran's service in Vietnam (any other exposure to herbicides) and obtain all outstanding service treatment records, including, but not limited to, treatment at Yokosuka Naval Hospital. The procedures outlined in 38 C.F.R. § 3.159 must be followed and all negative results must be documented. 4. Conduct a search for any additional evidence in VA's possession, to include another permanent or temporary claims file and to include any records connected with a January 1971 claim for compensation. All negative results must be documented. 5. Once the above development has been completed, provide the Veteran with a VA examination with a qualified physician to determine whether any current low back, hypertension, or bilateral foot disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current low back and bilateral feet disabilities, and should specifically state whether the Veteran is currently or has been treated with medication for hypertension since the institution of the claim and whether the Veteran has or has had hypertension. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current disability of the low back, hypertension, or bilateral feet, had onset in service or is otherwise related to a disease or injury in service, including the reported exposure to herbicides. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 6. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 7. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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). _________________________________________________ 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).