Citation Nr: 1610854 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 13-11 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a lower back disorder, to include residuals of a tail bone injury. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant (Veteran) represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active military service from August 2004 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In February 2016, the Veteran testified before the Board in a videoconference hearing convened at the RO. The record consists entirely of electronic claims files and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand of the claims on appeal is necessary for the following reasons. First, the Veteran indicated during his Board hearing that medical evidence from private healthcare providers may be outstanding. The Veteran should be provided with another opportunity to submit such private evidence. Second, the record indicates that the Veteran has served as an active reservist since his discharge from service in 2008. Any relevant medical evidence pertaining to this service should be included in the claims file. Third, the Veteran underwent VA compensation examination of his knees, back, and blood pressure in 2010 and 2012. The examiners indicated that the Veteran did not have current disorders or, for the knees, solely had pain. As the reports are several years old, the Veteran should again undergo VA compensation examinations addressing his knees, back, and blood pressure. Fourth, service treatment records (STRs) document that the Veteran's blood pressure noted in the September 2003 enlistment report of medical examination was hypertensive (162/100). Further, in December 2003, a physician noted the Veteran's "elev BP" while another indicated "borderline hypertension." As such, the Board must assess, with the assistance of medical examination and commentary, whether the elevated blood pressure noted prior to service was aggravated during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In addition, "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service." Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). If the presumption of soundness applies, the burden then shifts to "the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Id. Lastly, any recent VA treatment records relevant to these claims should be included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims folder any outstanding VA treatment records. If no additional VA treatment records exist, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 2. Attempt to obtain and associate with the claims folder any outstanding STRs pertaining to the Veteran's active reserve duty since discharge from active duty in 2008. If no additional records are found or do not exist, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 3. Provide the Veteran an additional opportunity to either submit outstanding private medical evidence, or to submit a signed VA Form 21-4142 pertaining to any outstanding private medical evidence. If, after making reasonable efforts to obtain any outstanding records the AOJ is unable to secure same, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 4. After the above development is completed, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his claimed knee, back, and hypertension disorders. The examiners should review the claims file prior to examination, to include any newly associated records obtained as a result of this remand, and to include a copy of this remand. (a) With regard to the claims to service connection for knee and back (tail bone included) disorders, the following inquiries should be addressed. (i) What are the Veteran's knee and back disorders? (ii) Is it at least as likely as not (i.e., probability of 50 percent or greater) that a diagnosed knee or back disorder is related to an in-service disease, event, or injury? Please note and discuss in the report the Veteran's lay assertions (and those supporting his assertions provided by family members) that he injured his knees and back during parachute jumps on active duty. Please also discuss the service treatment records (STRs) which are negative for chronic knee and back disorders. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. (b) With regard to the claim to service connection for hypertension, the following inquiries should be addressed. (i) Has the Veteran had hypertension at any time during the appeal period (since May 2010)? (ii) If the answer is affirmative in (i), is it at least as likely as not (i.e., probability of 50 percent or greater) that the hypertension (or elevated blood pressure) noted prior to active duty increased in severity during active service between August 2004 and August 2008? (iii) If the answer is affirmative in (ii), is it clear and unmistakable (obvious, manifest, and undebatable) that the increase in severity of the hypertension during service WAS NOT beyond the natural progress of the pre-service disorder? In other words, is it clear and unmistakable that the in-service worsening was merely reflective of the natural progress of the disorder? Please note and discuss in the report the Veteran's lay assertions of record which support his claims. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 5. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If a question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 6. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS 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) (2015).