Citation Nr: 1508866 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 10-21 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserve and had a period of active duty service from November 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A review of the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files reveal additional documents pertinent to the present appeal, including VA treatment records in Virtual VA that were not considered by the agency of original jurisdiction (AOJ) and a January 2015 brief in VBMS. Although the treatment records were not reviewed by the AOJ, there is no prejudice to the Veteran as the Board is remanding the appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND A remand is necessary to secure outstanding records and to obtain VA examinations and medical opinions regarding the nature and etiology of the claimed low back disorder, hypertension, and GERD. As noted above, the available service records show that the Veteran served in the United States Army Reserve and had a period of active duty service from November 1990 to May 1991. There is also evidence showing that the Veteran served from October 1974 to February 1975, but it is unclear as to whether such service was active duty, active duty for training (ACDUTRA), or inactive duty for training (ACDUTRA). The Board further notes that an entrance examination from his period of active duty service beginning in November 1990 is not of record. In addition, the claims file contains no service personnel records. Therefore, on remand, the AOJ should attempt to obtain any additional service treatment and service personnel records. As to the low back disorder, the Veteran has been diagnosed with a lumbar strain and has contended that he injured his back when he was in a motor vehicle accident in Saudi Arabia. See July 2009 VA treatment record. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of the low back disorder. Therefore, on remand, a VA examination should be provided. As to the hypertension, the Veteran's service treatment records show that the Veteran was medicated for his high blood pressure in 1988, but was taken off of the medication prior to his period of active service in November 1990. See October 1988 Report of Medical History and November 1990 service treatment record. After active service, the Veteran was diagnosed with hypertension and prescribed medication. As the Veteran has not been afforded a VA examination to determine whether the hypertension preexisted the Veteran's period of active service, or in the alternative, had its onset in or was otherwise related to his period of active service, the Board finds that an examination should be provided. As to the claimed acid reflux, the Veteran has been diagnosed with GERD. He has contended that his symptoms started during active service and that he was treated with pepto bismol and antacid tablets at that time. He attributed the GERD to the food, the stressful environment, and the environmental conditions during his service in the Persian Gulf, including exposure to thick oil and gaseous smoke. See July 2009 Notice of Disagreement. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of the GERD. Therefore, on remand, a VA examination should be provided. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the National Personnel Records Center (NPRC), the Army Reserve Personnel Center, the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, to request the Veteran's complete service personnel and treatment records, including records from his service in the Army Reserve. The AOJ should also request verification of the dates for each period of active duty and active duty for training since 1974 and then prepare and include in the claims file a summary of the dates of active duty and active duty for training. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any actions taken. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for GERD, a low back disorder, and hypertension. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's GERD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should specifically consider the results of the September 2009 endoscopy. The examiner should state whether it is at least as likely as not that the Veteran currently has GERD that manifested in service or is otherwise causally or etiologically related to his military service, to include from the environmental exposures that the Veteran was subject to during his service in the Persian Gulf, such as the food, stressful environment, and exposure to thick oil and gaseous smoke. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should specifically consider the Veteran's report in a July 2009 VA treatment record that he injured his back when he was in a motor vehicle accident in Saudi Arabia. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current low back disorders. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. In rendering this opinion, the examiner should address the Veteran's contention that he developed low back pain from injuries sustained from a motor vehicle accident during service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should specifically consider that the record contains an October 1988 report of medical history wherein the medical personnel noted that the Veteran had been on medication for his hypertension since June 1988 and that a subsequent November 1990 service treatment record contained a notation that the Veteran had problems with fluctuations in blood pressure, but that he was "ok" and not on any medications. The examiner should address whether hypertension clearly and unmistakably preexisted the Veteran's period of active duty service from November 1990 to May 1991. If so, he or she should state whether there was an increase in the severity of the preexisting hypertension during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that hypertension did not clearly and unmistakably preexist the period of active duty service, he or she should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has hypertension that manifested in or is otherwise related to his military service, including any symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the electronic claims file, must be made available to the examiner for review. 6. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 7. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).