Citation Nr: 21015419 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-09 989 DATE: March 17, 2021 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a back disorder is remanded. FINDING OF FACT The Veteran’s hypertension had its onset during a period of ACDUTRA. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from June 1976 to December 1976 and had various additional periods of active and inactive duty for training until his service retirement in June 2011. He served on active duty from May 2006 to June 2006. He served honorably in the U.S. Air Force and in the Air National Guard, including service in Iraq during the Gulf War. This matter was previously before the Board in May 2020, at which time the issues were remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to his military service. For the reasons that follow, the Board finds that his claim is warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Active service includes any period of ACDUTRA during which the individual was disabled from a disease incurred in the line of duty. 38 U.S.C. § 101; 38 C.F.R. § 3.6. 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Presumptive service connection provisions do not apply to ACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Similarly, neither the presumption of soundness nor the presumption of aggravation during service of pre-existing diseases or injuries that undergo an increase in severity during service apply to periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In this case, the Veteran was afforded a VA examination in August 2020, where he was diagnosed with hypertension. The examiner concluded following examination of the Veteran and review of the claims folder that the Veteran had hypertension during his periods of military service between March 1999 through 2001, and that his present hypertension is related to those periods of hypertension during his years of military service. The Veteran’s military personnel records confirm that the Veteran served periods of ACDUTRA during the period between March 1999 through the end of 2001. The Board finds that the evidence of record is at the very least in relative equipoise as to whether the Veteran’s hypertension developed during a period of ACDUTRA. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for hypertension is met. REASONS FOR REMAND Entitlement to service connection for a back disorder The Veteran contends that his back disorder is related to active duty service. Specifically, he contends that his job duties as a traffic management craftsman and airport and flight line transportation management supervisor in service aggravated his back disorders. Additionally, he contends that exposure to burn pit fumes resulted in tumor growth on his spine, which caused his back disorder. In August 2020, he was afforded a VA examination on the etiology of his diagnosed back conditions. However, the VA opinion is conclusory and inadequate to adjudicate the claim. Notably, the examiner was asked in the May 2020 remand to specifically address the Veteran’s June 2011 statement that he started experiencing incontinence during his deployment to Iraq. While the August 2020 examiner recites this fact in the opinion, there was no attempt to address the relevance of the Veteran’s lay reports. Instead, the examiner stated that service medical records “were silent for incontinence, nocturnia or bladder conditions.” An opinion based on the absence of treatment records without consideration of a veteran’s competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). On remand, the Veteran’s claim should be forwarded to a VA examiner, preferably an orthopedic surgeon, for a more responsive opinion on the etiology of the Veteran’s diagnosed back conditions that specifically considers his lay statements concerning the onset and progression of his symptoms and specifically addresses evidence in the record favorable to his claim. The matters are REMANDED for the following action: Forward the Veteran’s claims file to an appropriate examiner – preferably an orthopedic surgeon – for comment on the etiology of his diagnosed back disabilities. If the opinion provider determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to provide an opinion addressing the following questions: (a) Please identify all diagnosed back disabilities during the appeal period. (b) Is it at least as likely as not (50 percent or higher probability) that any diagnosed back disability had its onset in or is otherwise related to military service? The examiner is asked to specifically comment on the relevance of the Veteran’s reports that he started experiencing incontinence during his deployment to Iraq. In attempting to comment on this determinative issue of causation, the August 2020 VA examiner impermissibly relied on the absence of medical records documenting any back problems until 2010. The VA examiner also failed to evaluate the Veteran’s statements that he began experiencing incontinence symptoms while on active duty service. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Jack S. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel