Citation Nr: 21023010 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-16 321 DATE: April 19, 2021 ORDER New and material evidence to reopen claim of service connection for hypertension has been presented; to this extent, the appeal is granted. New and material evidence to reopen claim of service connection for low back disability has been presented; to this extent, the appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for residuals of frostbite of the bilateral feet is remanded. Entitlement to service connection for residuals of food poisoning is remanded. FINDINGS OF FACT 1. In a February 2009 rating action, the RO denied the Veteran’s claims of service connection for hypertension and low back disability; following the RO’s March 2009 letter, which notified him of the determination and of his appellate rights, the Veteran filed a Notice of Disagreement (NOD); however, following the RO’s issuance of an August 2010 Statement of the Case (SOC) the Veteran failed to perfect his appeal and the determinations became final. 2. New and material evidence has been received to reopen the matter of service connection for hypertension. 3. New and material evidence has been received to reopen the claim of service connection for back pain. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria to reopen the claim for service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence having been received, the criteria to reopen the claim for service connection for back pain have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army from November 1980 to April 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran presented sworn testimony at a hearing before the undersigned in December 2020. Claims to Reopen 1. Whether new and material evidence has been received to reopen the matter of service connection for hypertension. 2. Whether new and material evidence has been received to reopen the claim of service connection for back pain. The Veteran previously submitted claims of entitlement to service connection for hypertension and back pain which were denied in a February 2009 rating decision on the basis that the Veteran did not have a current back disability and that the record did not show that hypertension was incurred in or caused by service. The February 2009 rating decision became final because the Veteran did not perfect an appeal to the Board following the issuance of a Statement of the Case (SOC) in August 2010. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he testified that during periods of active duty he experienced low back pain and that he was diagnosed with hypertension after being hospitalized for food poisoning. See December 2020 Hr’g Tr. at 5, 12. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran testified at the December 2020 Board hearing that while on active duty in March 1986 or 1987 he became sick after eating and was rushed to DeBakey Hospital in Houston where he was diagnosed with high blood pressure for which he was given medication. He then stated that ever since he has had problems with his blood pressure. He stated that for the past three years his doctor has checked his blood pressure. As the Veteran indicated that his hypertension had its onset during his service in the Texas National Guard, the AOJ should attempt to verify the Veteran’s periods of active duty for training or inactive duty for training. The Board notes that the Veteran referred to DeBakey hospital in Houston in his December 2019 Board testimony, and that this would indicate he was treated at Michael E. DeBakey VA Medical Center in Houston. Obtain the Veteran’s VA treatment records from Michael E. DeBakey VAMC for the period from 1980 to 1989. As it is unclear whether the Veteran's hypertension is related to his service, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a low back condition is remanded. The Board has recharacterized this matter from service connection for back pain to service connection for a low back condition. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran testified at the December 2020 Board hearing that while on active he had back problems, but he kept quiet about them so as not to get dishonorably discharged. He then asserted that he was in “good condition before [he] went in the military.” He then stated that he never sought any treatment for his back pain while in the military. He then stated that his duties as a generator and wheeled vehicle mechanic required lifting, bending, and twisting. He then stated that “some of the exercises [were] pretty hard on [him].” As it is unclear whether the Veteran's low back condition is related to his service, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. McLendon. Further, as the Veteran has reported that he receives Social Security income for his low back condition, a remand is required to obtain those records. 3. Entitlement to service connection for residuals frostbite of the bilateral feet is remanded. The Veteran testified at the December 2020 Board hearing that his feet are blistered now which he treats by “bust[ing] them” and using cortisone cream. He stated that he was at Fort Jackson, South Carolina in minus 8 degrees that caused his feet to freeze to where he “couldn't even hardly walk.” He then stated that a Lieutenant in a log cabin allowed him to take off his shoes, warm his feet and change his socks. He then stated that ever since that time he has had blisters on his feet. As it is unclear whether the Veteran's residuals of frostbite of the bilateral feet are related to his service, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. McLendon. 4. Entitlement to service connection for residuals of food poisoning is remanded. The Veteran testified at the December 2020 Board hearing that while on active duty in March 1986 or 1987 he became sick after eating, causing his stomach to hurt “real bad” and prevented him from being able to stand up. He stated that he was rushed to DeBakey Hospital in Houston and that ever since he has had problems with stomach pain. He then stated that he recently had endoscopy because he gets bloated frequently and “ha[s] stomach issues.” As it is unclear whether the Veteran's residuals of food poisoning are related to his service, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. McLendon. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the Texas National Guard. Verify all active duty for training and inactive duty training dates for alleged service in the Texas National Guard from 1980 to 1989. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s VA treatment records from Michael E. DeBakey VAMC for the period from 1980 to 1989. 3. Obtain the Veteran's complete records from the Social Security Administration. 4. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back, high blood pressure, frostbite problems as well as residuals of food poisoning. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. Schedule the Veteran for a VA examination for his hypertension. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s hypertension at least as likely as not related to service? The examiner must specifically address the Veteran’s contention that he was diagnosed with hypertension during a period of active service and has been treated for hypertension ever since. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 6. Schedule the Veteran for a VA examination for his low back condition. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s low back condition at least as likely as not related to service, including his duties as a wheeled vehicle mechanic and/or building a bridge? Provide a rationale to support the opinion(s). Is it at least as likely as not that the low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must address the Veteran’s contention that he first experienced problems while building a bridge on duty at National Guard summer camp when he heard a pop in his back and experienced discomfort, but did not report it and continued on duty. See, April 14, 2016 VA treatment record. The examiner must address the Veteran’s contention that his duties as a generator and wheeled vehicle mechanic requiring lifting and flexibility, in addition to the required exercise, caused his low back condition. See, December 2020 Hr’g Tr. at 5, 12. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 7. Schedule the Veteran for a VA examination for his residuals of frostbite of the bilateral feet. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s residuals of frostbite of the bilateral feet at least as likely as not related to service, including claimed exposure to minus 8 degrees weather? The examiner must address the Veteran’s contention that he was in minus 8 degrees weather that caused his feet to freeze to where he “couldn't even hardly walk” and ever since that time has had blisters on his feet. See, December 2020 Hr’g Tr. at 9. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 8. Schedule the Veteran for a VA examination for his residuals of food poisoning. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s residuals of food poisoning at least as likely as not related to service? The examiner must address the Veteran’s contention that he became sick after eating, causing his stomach to hurt “real bad”, leading to his being hospitalized, and that ever since he has had problems with stomach pain. See, December 2020 Hr’g Tr. at 3. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.