Citation Nr: 1801938 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-14 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart condition, to include hypertrophic cardiomyopathy. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1977 to January 1987. Subsequent to the Veteran's separation in January 1987, he was a member of the Ohio Air National Guard, during which he performed periods of active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), and active service, until January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for hypertension and hypertrophic cardiomyopathy. A hearing was held in May 2011 before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. The Board recognizes that the law requires the VLJ who conducts a hearing to participate in any decision made on appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). Accordingly, on May 2, 2017, the Veteran was notified that the VLJ who conducted his hearing is no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond. As no response was received, the Board assumes that the Veteran does not desire another Board hearing. This matter was previously before the Board in December 2011, where the matter was remanded to the RO for further development. Specifically, the RO was requested to obtain the Veteran's active and National Guard service personnel records, and all special orders directing the Veteran to perform ACDUTRA or INACDUTRA, as well as a detailed listing and breakout of the Veteran's earned active duty points. Subsequently, additional service records, a listing of the Veteran's earned active duty points, as well as records from the Ohio Air National Guard were associated with the Veteran's claims file. A note was included in the Veteran's file indicating that all procedures to obtain any of the Veteran's outstanding service treatment records were completed. Accordingly, the Board's December 2011 remand decision has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). However, for the reasons set forth below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his hypertension and heart condition (hypertrophic cardiomyopathy) were caused by two incidents that occurred in service around 1980. First, the Veteran claims that while working as a technician on radar systems at Shaw Air Force Base in South Carolina, he was directly exposed to microwave radiation for approximately 20 minutes. Next, the Veteran contends that while he was disassembling a radar transmitter, he was hit with approximately 4,000-8,000 volts of electricity. The Veteran contends that he reported these incidents to his supervisor, but did not seek medical treatment. The Veteran specifically claims that he was exposed to microwave radiation while working as a technician on radar equipment. His service personnel records establish that his military occupation was an Avionic Navigation Systems Specialist. The United States Court of Appeals for Veterans Claims has taken judicial notice that radar equipment emits microwave type non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects Upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). The Board notes that the regulations governing radiation exposure are not applicable here, as VA's radiation regulations only pertain to exposure to ionizing radiation. See 38 C.F.R. §§ 3.309, 3.311 (2017). Additionally, the Veteran has not alleged exposure to ionizing radiation, nor does the evidence of record suggest he was exposed to ionizing radiation. A review of the record shows that the Veteran was first diagnosed with hypertension in September 1996, when he was hospitalized for elevated blood pressure. The Veteran acknowledged during his May 2011 Board hearing that he was not on active duty when he was hospitalized in 1996. However, he had subsequent periods of ACDUTRA and active service. Service medical records for these subsequent periods of service (e.g., August 2002) note a diagnosis of, and treatment for, hypertension. A review of the record also establishes that the Veteran was never provided a VA examination for his hypertension or heart condition. Therefore, the Board determines that a remand is necessary to afford the Veteran the opportunity to have a VA examination to determine if his hypertension was caused by the two incidents described above, and/or aggravated by his subsequent periods of service. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the claims on appeal. 2. The Veteran should be afforded an appropriate examination to determine the nature and etiology of the claimed hypertension. The electronic claims file should be made available to and reviewed by the examiner. This record review should be noted in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: (a) Accepting the Veteran's contentions described above as true, whether it is at least as likely as not (50 percent probability or greater) that his currently diagnosed hypertension was caused by exposure to microwave radiation and/or a high-voltage shock. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's preexisting hypertension was aggravated by a period of ACDUTRA or active service subsequent to his September 1996 hospitalization. (c) If the examiner finds that the hypertension was caused by the microwave radiation and/or a high-voltage shock, or aggravated by service, then the examiner shall determine if the Veteran currently suffers from a heart condition, to include hypertrophic cardiomyopathy. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed heart condition is secondary (caused or aggravated) by the Veteran's diagnosed hypertension. A complete rationale for all opinions should be provided. If the examiner cannot provide the above requested opinions without resorting to speculation, it should be so stated and a rationale provided for that medical conclusion. 3. Thereafter, readjudicate the issues on appeal based on all the evidence of record, and if any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. The Veteran should be provided a reasonable period to respond before the case is returned to the Board for review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).