Citation Nr: 1624212 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 09-47 786 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for bilateral inguinal hernias. 2. Entitlement to service connection for a coronary artery disease (CAD)), to include as secondary to anxiety. 3. Entitlement to service connection for hypertension (HTN). 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for anxiety. 6. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from January 1967 to June 1967. He also had numerous other additional verified periods of "active duty other" (ACDUTRA or otherwise) and unspecified periods of inactive duty for training (INACDUTRA) with the Air National Guard from July 1967 to March 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied, inter alia, service connection for the identified disabilities. In June 2009, the appellant filed a notice of disagreement (NOD) as to this denial. The RO issued a statement of the case (SOC) in November 2009, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2009. The RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claim in February 2010. In May 2012, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In March 2013, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC. After accomplishing the requested actions (to the extent possible), the AMC continued to deny the claims (as reflected in a June 2013 SSOC), and returned these matters to the Board for further appellate consideration. The Board notes that in addition to the paper claims file, the appellant has paperless, electronic records stored in the Veterans Benefits Management System (VBMS) and Virtual VA claims processing system. For reasons expressed below, the claims on appeal are, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on his part, is required. REMAND At the outset, the Board notes that with respect to the appellant's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101(22), (24) (West 2014); 38 C.F.R. § 3.6 (2015). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.) In this case, an August 2008 examination report from J. Terlato, M.D. and an August 2008 MRI report from the Fall River-New Bedford Regional MRI Center reveal that the appellant has been diagnosed as having CAD, HTN, C5-C6 spondylosis with mild cord impingement, and bilateral foraminal stenosis with additional bilateral C6-C7 foraminal narrowing. He has also reported that he experiences residual symptoms of bilateral hernias, anxiety, and symptoms of a right knee disability (see a September 2008 personal statement from the appellant and pages 5 through 9 of the Board hearing transcript). Thus, competent evidence of current cardiac disability, HTN, and cervical spine disability and possible residuals of bilateral inguinal hernias, psychiatric disability, and right knee disability have been demonstrated. The appellant contends that all of his claimed disabilities had their onset during his service with the National Guard and his service treatment records include various references to, reports of, and/or instances of treatment for his claimed disabilities during his National Guard service. He has also reported that he has experienced a continuity of hernia, cardiac, hypertension, cervical spine, psychiatric, and right knee symptomatology in the years since service. In addition, a July 2008 letter from Dr. Terlato includes an opinion, in pertinent part, that "t]he evidence is substantiated by [the Veteran's] medical records . . . regarding his claims that his coronary artery disease was caused by his job as a Logistics Commander with the 143rd Tactical Airlift Wing." In sum, there is competent evidence of current cardiac disability, HTN, and cervical spine disability and possible residuals of bilateral inguinal hernias, psychiatric disability, and right knee disability, evidence of these claimed disabilities during the appellant's National Guard service, competent evidence of a continuity of symptomatology in the years since service, and a medical opinion that appears to indicate that the claimed cardiac disability is related to service. In light of this evidence and the fact that multiple periods of "active duty other" (ACDUTRA or otherwise) in the years since the initial period of ACDUTRA from January1967 to June 1967 have now been confirmed, the Board finds that VA's duty to obtain examinations as to the nature and etiology of the appellant's claimed disabilities is triggered. Such examinations are needed to determine whether the appellant has any current hernia residuals, psychiatric disability, or right knee disability and to obtain medical opinions as to whether any such disabilities and the current cardiac disability, HTN, and cervical spine disability were incurred by period(s) of active duty. Prior to obtaining medical opinions in connection with these claims, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b) (West 2014). See 38 U.S.C.A. § 5103(b) (1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). 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, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the service connection claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the appellant and his representative a letter requesting that the appellant provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2015). All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current inguinal hernia or residual thereof. The contents of the entire claims file paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any inguinal hernia or residual(s) thereof diagnosed since July 2008 (even if now asymptomatic or resolved): Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability ad its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current cardiac disability. The contents of the entire claims file, (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any cardiac disability(ies) since July 2008 (even if now asymptomatic or resolved): Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current hypertension. The contents of the entire claims file, paper and electronic, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For hypertension diagnosed at any point since July 2008 (even if now asymptomatic or resolved), the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current cervical spine disability. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any cervical spine disability(ies) diagnosed since July 2008 (even if now asymptomatic or resolved) Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability ad its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by a psychiatrist or psychologist, to obtain information as the nature and etiology of any current psychiatric disability. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated mental health professional, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any psychiatric disability(ies) diagnosed since July 2008 (even if now asymptomatic or resolved): Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability ad its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 8. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the appellant to undergo a VA examination, by an appropriate physician, to obtain information as to the nature and etiology of any current right knee disability. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the appellant's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any right knee disability diagnosed since July 2008 (even if now asymptomatic or resolved): Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability ad its onset during a verified period of ACDUTRA/active duty other or is otherwise the result of disease or injury during one or more verified period(s) of ACDUTRA/active duty other. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 9. To help avoid future remand, 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 10. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence (to particularly include that added to the paper claims file and/or the VBMS/Virtual VA file(s) since the last adjudication), and all legal authority. 11. If any benefit sought on appeal remains denied, furnish to the appellant and his representative an appropriate SSOC that reflects consideration of all additional relevant evidence received since the June 2013 SSOC and includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 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 benefit(s) requested should be granted or denied. The appellant 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 REMAND 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 2014). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).