Citation Nr: 1802702 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-19 499 ) 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 right knee disability. 3. Entitlement to service connection for left knee disability. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for a foot disability, to include flat feet and gout. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to November 1986 and from August 2, 2005 to August 16, 2005. He also had periods of service in the Army National Guard and Army Reserve, including periods of active duty for training and inactive duty training. This case comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board denied entitlement to service connection for hypertension in May 2011. In December 2011, United States Court of Appeals for Veterans Claims (the Court) granted a joint motion to vacate the Board's decision as to this issue and remanded the claim to the Board. In May 2012, May 2014, and March 2017, the case was remanded for further development. The issues on appeal were addressed in a January 2014 Board hearing before the undersigned. A copy of the hearing transcript is of record. The Board also notes that a different Veterans Law Judge conducted a June 2009 hearing, but that hearing addressed two issues that are unrelated to those addressed in this decision. Therefore, there is no need for that Veterans Law Judge to participate in this decision, and no need for a panel decision and consideration of whether a third hearing is required before a third Veterans Law Judge. Cf. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In March 2017, the Board remanded these issues in so that the AOJ could contact any appropriate organization, including the National Personnel Records Center, the Army Reserve, the Alabama National Guard, and the Defense Finance and Accounting Service, in order to verify the Veteran's complete periods of service. The Board clearly explained that it was necessary to establish as complete a list as possible of every period of the Veteran's active service, active duty for training, and inactive duty for training and that the "precise" periods of service must be provided to all VA examiners prior to obtaining medical opinions regarding the likely etiologies of his claimed disabilities. Unfortunately, it does not appear that the AOJ made any attempt to follow the instructions provided in the Board's March 2017 remand. The Board is obligated by law to ensure that the AOJ complies with Board remand directives, and errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). While the AOJ obtained a VA/Department of Defense Identity Repository (VADIR) Information Report, this report is not in compliance with the Board's March 2017 remand directives. The Information Report obtained by the AOJ contains only general periods of membership in the Army Reserve and Army National Guard. It does not provide any specific periods of active duty for training or inactive duty for training. The Board therefore has no option but to remand this case once again so that its prior remand instructions can be followed, and a more complete report regarding the Veteran's periods of service can be created. After all efforts have been made to determine the Veteran's complete periods of active duty, active duty for training, and inactive duty for training, addendum medical opinions must be obtained regarding the likely onset and etiology of his claimed service-connected disorders that reflect consideration of the Veteran's periods of inactive duty for training and active duty for training. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ must contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, the Army Reserve, and the Alabama National Guard, and if otherwise unsuccessful, the Defense Finance and Accounting Service, and request that they verify each and every period of the claimant's service. This specifically includes classifying all periods of active duty, active duty for training, and inactive duty for training, and the stating the relevant branch of service. A Chronological Statement of Retirement Points or VADIR Information Report is NOT acceptable. Should it become necessary to contact the Defense Finance and Accounting Service to secure this information, that agency must review the various pay accounts to determine the account from which the claimant was paid for each period of service (i.e., for what service periods was the appellant paid from an account designated to pay for inactive duty service; what service periods were paid from an account designated to pay for active duty for training, etc.). If the AOJ cannot locate any required records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant and his representative must then be given an opportunity to respond. A memorandum should be issued listing each and every period of service, including even brief periods of active duty for training and inactive duty for training, and this information must be made available to all VA examiners prior to completion of the VA examination requests listed below. 2. Thereafter, obtain an addendum VA medical opinion regarding the etiology of his hypertension. If the examiner determines that an additional VA examination must be scheduled prior to providing such an opinion, schedule such an examination. The examiner must have access to all files in Virtual VA and VBMS. The Veteran's precise periods of service, including active duty for training and inactive duty training, must be provided to the examiner. The examiner must indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's hypertension was incurred in or aggravated by a period of active duty service, or active duty for training. The examiner must consider the Veteran's assertions that his blood pressure, which was already high before some periods of service, was permanently increased during periods of active duty for training due to physical exertion and stress. The examiner is advised that even if the Veteran's precise periods of active duty for training are not determined, the Veteran has credibly asserted having numerous periods of active duty for training while a member of the Army Reserve and Army National Guard. The examiner should also discuss the following blood pressure readings: * A January 1999 reading of 158/100; * 2001 and 2002 diagnoses of hypertension; * A May 2004 reading of 144/98; * A June 2005 reading of 168/89 * August 2005 readings of 165/105 and 130/89; * and a March 2006 reading of 140/90. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Obtain an addendum VA medical opinion regarding the etiology of a knee disability. If the examiner determines that an additional VA examination must be scheduled prior to providing such an opinion, schedule such an examination. The examiner must have access to all files in Virtual VA and VBMS. The Veteran's precise periods of service, including periods of active duty for training and inactive duty training, must be provided to the examiner. The examiner must indicate whether it is as least as likely as not (50 percent probability or more) that any current knee disability was incurred in or aggravated by any period of active duty service, active duty for training and inactive duty training. The examiner must address the Veteran's assertions that he injured his knees during basic training in 1985 or 1986, and that they were further damaged by repeated training during his years in the Army Reserve and Army National Guard. It is noted to the examiner that even if the Veteran's precise periods of active duty for training and inactive duty training have not been determined, the Veteran has credibly asserted having numerous periods of active duty for training and inactive duty training while he was a member of the Army Reserve and Army National Guard. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Obtain an addendum VA medical opinion regarding the etiology of sleep apnea. If the examiner determines that an additional VA examination must be scheduled prior to providing such an opinion, schedule such an examination. The examiner must have access to all files in Virtual VA and VBMS. The Veteran's precise periods of service, including active duty for training, must be provided to the examiner. The examiner must indicate whether it is as least as likely as not (50 percent probability or more) that sleep apnea was incurred in or aggravated during any period of active duty service, or any subsequent period of active duty for training. The examiner should address the Veteran's assertions that his sleep apnea had its onset during his active duty in 2005, as evidenced by his fellow soldiers who told him that he snored loudly and stopped breathing during sleep, which led to his having a sleep study and being diagnosed with sleep apnea. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. Obtain an addendum VA medical opinion regarding the etiology of any diagnosed foot disorder, to include flat feet and gout. If the examiner determines that an additional VA examination must be scheduled prior to providing such an opinion, schedule such an examination. All necessary tests should be conducted. The examiner must have access to all files in Virtual VA and VBMS. The Veteran's precise periods of service, including active duty for training and inactive duty training, must be provided to the examiner. The examiner should determine the Veteran's current diagnoses of the feet, to include consideration of whether the Veteran has, or has had at any time during the current appeal, a diagnosis of flat feet or gout. For every foot disorder diagnosed the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disorder was incurred in or aggravated during any period of active duty service, active duty for training, or inactive duty training. The examiner must discuss the Veteran's lay assertion that while he may have had flat feet before service, he never had any foot pain or problems until he entered service, that his foot pain has continued since basic training until the present, and that he was first diagnosed with gout while in the National Guard in 1989 or 1990. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated bearing in mind that service connection may be granted for a disability resulting from disease or injury incurred during active duty or active duty for training, but only for an injury suffered during inactive duty training. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ DEREK R. BROWN 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).