Citation Nr: 1633812	
Decision Date: 08/26/16    Archive Date: 08/31/16

DOCKET NO.  14-28 270	)	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 low back disability, to include degenerative disc disease (DDD).  

3.  Entitlement to service connection for sleep apnea.  

4.  Entitlement to service connection for a lower respiratory disability, to include bronchial asthma.  

5.  Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	C. Kemmerly, Esq.  


ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel


INTRODUCTION

The Veteran had active service in the United States Marine Corps from September 1993 to November 1996.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The issues of entitlement to service connection for lower respiratory, low back, and sleep disabilities; and the issue of entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's hypertension was first manifest during active duty.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for hypertension have been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims that he developed hypertension in active service.  The Board will allow the claim.   

Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service medical and dental document elevated blood pressure readings and likely hypertensive disease.  Specifically, In November 1994, the Veteran was assessed as having "probably hypertension."  An additional routing clinical record includes an assessment by a U.S Navy medical professional that a sequential blood pressure check should occur for the Veteran.  While it does not appear that such testing did occur, it is clear that there were hypertensive symptoms during active service.  

In October 2011, the Veteran was afforded a VA examination by a physician's assistant (PA).  This clinician reviewed the claims file, and noted that three successive measurements in November 1994 (during a dental visit) showed elevated blood pressure.  It was also noted that, in August 1996, the Veteran was evaluated for high blood pressure with readings of 159/101 and 147/103.  Hypertension was diagnosed in 1999, following service separation, and the VA examiner explained that the Veteran has been on medication to control hypertension since that time.  

The VA examiner confirmed that the Veteran had a diagnosis of hypertension requiring the usage of medication.  With respect to an opinion regarding etiology, the examiner noted the multiple in-service consultations for high blood pressure and the plan for follow-up which was not realized.  The examiner observed that "the Veteran started treatment for hypertension while in service."  Also, the examiner described the condition as persistent and that medical management of the disorder began approximately two years after separation; and that hypertension was at least as likely as not a result of high blood pressure findings on active duty.  

There is no opinion to contradict the findings of the October 2011 examiner, and the opinion is well-rationalized and based on a thorough review of the claims file.  The examiner noted the history of isolated blood pressure elevations in service and the need by Navy medical personnel to follow-up on the condition.  That treatment was afforded closely after service separation, it was clear to the examiner that current hypertension first manifest on active duty.  As this is the case, and as there is no evidence counter to these findings, the Board can conclude that current hypertension had causal origins in active duty.  


ORDER

Service connection for hypertension is granted.  


REMAND

The Board has determined that additional medical development is required regarding the remaining claims. As to the back disorder, while a July 2011 VA examiner found that a low back disability was not related to incidents of low back pain documented in service, the law provides that while there is only evidence of pain in service, there is a suggestion that such pain could be attributed to chronic pathology.  A new examination is necessary which fully considers all pertinent lay and medical evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In 2015, the Social Security Administration (SSA) found that the Veteran was disabled.  However, the SSA's medical records are not in the record.  All records held in federal custody are deemed to be constructively part of the record, and accordingly, prior to adjudication, such records must be obtained.  See Bell v. Derwinski, 2 Vet. App. 611 (1992). 

A notice of disagreement has been filed regarding a claim for entitlement to TDIU.  A statement of the case must now be furnished.  See Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Contact the SSA and obtain all medical records used in the 2015 disability determination by that agency.  Ensure exhaustive efforts are made to obtain the records, and if none exist after the completion of such attempts, so annotate the record.  

2.  Schedule the Veteran for a comprehensive VA examination with an expert in orthopedic medicine (Doctor of Medicine/Doctor of Osteopathic medicine with a completed residency in orthopedic surgery).  The following is asked:

*Does the Veteran's current degenerative disc disease, or any other currently present low back pathology, have causal origins in active service?

*Is arthritis present in the low back? 

*Attention should be given to the lay statements of record.  Specifically, the examiner should reference accounts of the Veteran not experiencing back pain until after his return from active duty.  

*1995 and 1996 in-service reports of back pain, to include categorization of the pain as "chronic," should specifically be referenced by the examiner.  

*If arthritis is present, the examiner must comment as to if the pain reported during and after service represented a continuity of symptomatology of that disorder.  With respect to degenerative disc disease, the examiner should note as to if the pain noted in service represented the earliest manifestation of current low back disablement.  

ALL OPINIONS MUST INCLUDE EXPLANATIONS ASSOCIATED WITH THE CONCLUSIONS.  THE MERE FACT THAT THERE IS NO DOCUMENTATION OF ANY CHRONIC PATHOLOGY IN SERVICE (OTHER THAN REPORTED PAIN WITHOUT UNDERLYING DISABILITY) IS NOT, IN ITSELF, A SUFFICIENT BASIS ON WHICH TO REST AN OPINION.  

3.  With respect to the claimed TDIU, a statement of the case is to be issued.  The Veteran is to be informed of what is required to perfect his appeal to the Board, and he should be allowed the appropriate time to file a substantive appeal.  Additionally, he should be informed of his ability to submit any additional evidence in his possession which may help to substantiate his claim.  

4.  Following the above-directed development, re-adjudicate the Veteran's claims.  Should the low back, sleep apnea, and lower respiratory disability claims be denied, issue an appropriate supplemental statement of the case and forward the claim to the Board.  With respect to the TDIU claim, should the Veteran perfect a substantive appeal, dispatch the claim to the Board for adjudication.   

The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014).


______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs