Citation Nr: 1816083 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 09-37 089A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran had active duty training from May 1976 to September 1976 and active duty service from December 1976 to April 1984. His service from December 28, 1980, until his April 1984 discharge was dishonorable, and the Veteran is not entitled to VA compensation benefits for his dishonorable period of service. 38 C.F.R. § 3.12(a). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in November 2009. In August 2011, the Veteran presented testimony at a personal hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. In a letter dated in January 2018, the Veteran was notified that the VLJ who conducted the hearing was no longer with the Board and that the Veteran had the right to another Board hearing. By a signed submission in February 2018, the Veteran elected to proceed without another Board hearing. The Board remanded the claim in January 2012. In a September 2014 decision, the Board in pertinent part denied reopening the claim for service connection for hypertension. The Veteran appealed that denial of reopening to the United States Court of Appeals for Veterans Claims (Court) and in a May 2015 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board's September 2014 denial and remanding the matter to the Board. In an August 2015 decision, the Board reopened the claim for service connection for hypertension, and then remanded it for additional development. In January 2016, the Board denied the claim for service connection for hypertension. The Veteran again appealed the denial to the Court, and in a May 2017 Memorandum Decision, the Court vacated the Board's January 2016 denial and remanded the claim for further development consistent with the Memorandum Decision. 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 Veteran if further action is required. REMAND Pursuant to the Court's Memorandum Decision in May 2017, the Board has been ordered to afford the Veteran additional notice and to develop the claim, as detailed below. See Winslow v Brown, 8 Vet. App. 469, 472 (1996). The Court specifically found that the Board was deficient in its notice to the Veteran at his August 2011 hearing, for failing to inform the Veteran that to support his claim he could submit evidence of hypertension within the first post-service year or evidence of continuity of symptomatology from service. The Court additionally found that there was sufficient evidence to warrant affording the Veteran a VA examination addressing medical questions raised in furtherance of the claim, citing 38 U.S.C. § 5103A(d)(2) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2017). Accordingly, the case is REMANDED for the following actions: (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 Veteran should be afforded the opportunity to submit additional evidence or argument in furtherance of his claim. Specifically, he should be informed that he may submit evidence of hypertension in service or within the first post-service year, or evidence of continuity of symptoms of hypertension between service and the present. 2. With appropriate authorization or assistance from the Veteran, associate with the claims file any additional VA treatment records or other pertinent treatment or evaluation records not yet obtained. The Veteran and his authorized representative should be informed of the outcome of such evidentiary requests, including of any failure to obtain additional records. 3. Thereafter, afford the Veteran a VA examination to address the nature and etiology of his hypertension. The claims file must be reviewed for the examination. Any necessary tests or studies should be conducted. The examiner must do the following: a) Note that the Veteran's periods of honorable service are from May 1976 to September 1976 and from December 1976 to December 1980, and that the Veteran had a period of dishonorable service from December 28, 1980 to April 9, 1984. The examiner is hereby advised that service connection, and hence any supporting medical opinion, must be based on the Veteran's honorable service and cannot be based on his dishonorable service. b) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that at least one of the following criteria to support service connection is met: 1) Hypertension present during the claim period developed during the Veteran's honorable service. (The examiner should discuss the elevated blood pressure readings during service). 2) Hypertension present during the claim period was present within the first year following his separation from his last interval of honorable service ending in December 1980 to a degree meeting the criteria for a 10 percent evaluation (diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or having a history of diastolic pressure predominantly 100 or more that requires continuous medication for hypertension control) or was then more severe than these criteria; 3) Hypertension present during the claim period was present from service to the present as supported by continuity of symptomatology from the Veteran's last period of honorable service up to the present; or 4) Hypertension present during the claim period is otherwise causally related to the Veteran's honorable service. c) Provide an explanation for opinions expressed, as supported by the evidentiary record and the examiner's medical knowledge. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. After completing the development above, readjudicate the claim on appeal in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ LANA K. JENG 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).