Citation Nr: 21042533 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-38 398 DATE: July 13, 2021 REMANDED The claim of entitlement to service connection for a psychiatric disorder is remanded. The claim of entitlement to service connection for diabetes mellitus type II is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for a lumbar spine disorder is remanded. The claim of entitlement to service connection for a right shoulder disorder is remanded. The claim of entitlement to service connection for a left ankle disorder is remanded. The claim of entitlement to service connection for a right ankle disorder is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from February 1986 to January 1994 with a subsequent period of Army National Guard service. 1. The claim of entitlement to service connection for a psychiatric disorder is remanded. Please see discussion in paragraph 5. 2. The claim of entitlement to service connection for diabetes mellitus type II is remanded. Please see discussion in paragraph 5. 3. The claim of entitlement to service connection for a right shoulder disorder is remanded. Please see discussion in paragraph 5. 4. The claim of entitlement to service connection for a left ankle disorder is remanded. Please see discussion in paragraph 5. 5. The claim of entitlement to service connection for a right ankle disorder is remanded. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the Board remanded the case and instructed the AOJ to obtain complete service treatment records from the Veteran's period of Army National Guard service. The Board also instructed the AOJ to verify all periods of ACDUTRA and INACDUTRA with the Louisiana National Guard. Pursuant to the Board remand, the AOJ attempted to obtain the Veteran's records from the National Guard. A December 2020 letter details the steps taken to obtain the records, including contacting the National Personnel Records Center (NPRC), contacting the Defense Personnel Records Retrieval System (DPRIS), and attempting to pull records from the Joint Legacy Viewer (JLV); however, the service treatment records could not be located. Unfortunately, it does not appear that the AOJ requested the Veteran's records directly from the Louisiana National Guard. With respect to the steps taken to verify all periods of ACDUTRA and INACDUTRA, the AOJ submitted requests to the Defense Financial Accounting Service (DFAS) in April 2020 and November 2020. In July 2020, the AOJ received leave and earning statements for the Veteran's period of active duty service from 1986 to 1994. The November 2020 request was for verification of separation pay for the Veteran's regular/active duty service that ended in January 1994. DFAS responded that there was no record of separation pay for the Veteran for the period requested. The record does not reflect that the AOJ contacted DFAS to verify the Veteran's ACDUTRA and INACDUTRA service for the periods after his January 1994 separation from active duty service. Accordingly, a remand is required to attempt to obtain the Veteran's service treatment records from the Louisiana National Guard and to verify all periods of ACDUTRA and INACDUTRA service. 6. The claim of entitlement to service connection for hypertension is remanded. The Veteran asserts that his hypertension is related to the stress he experienced during his active duty service. In support of his claim, the Veteran submitted a May 2021 private medical opinion relating his hypertension to service. The examiner opined that the Veteran's hypertension was incurred during his military service. The rationale was that the Veteran had uncontrolled and untreated hypertension on active duty with continuity of symptoms from service to the date of clinical diagnosis. The examiner referenced an August 1991 service treatment record showing a blood pressure reading of 140/94 and a July 2001 service treatment record showing a blood pressure reading of 154/88. The examiner also cited to medical literature that found that for African-Americans, high blood pressure often develops early in life and that the prevalence of hypertension in African-Americans is among the highest in the world. The Veteran has not been afforded a VA examination with respect to his claim for service connection for hypertension. Based on the above, the Board finds the low threshold necessary to provide an examination has been established in this case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges the favorable medical opinion; however, it does not appear that the private physician considered the normal blood pressure readings during the Veteran's active duty service. Furthermore, the opinion was based on two elevated blood pressure readings, one taken during the Veteran's active duty service, and another during his National Guard service. The development requested below concerning verification of the Veteran's periods of ACDUTRA and INACDUTRA will assist in deciding the Veteran's claim. 7. The claim of entitlement to service connection for a lumbar spine disorder is remanded. The Veteran also submitted multiple buddy statements detailing an in-service back injury that occurred while he was loading equipment onto a truck. The statements indicated that the Veteran fell four to five feet and was unable to move until the pain lessened. The lay statements also indicated that the Veteran was discouraged from going to sick call and that he continued to complain of back pain after the incident. The Veteran has not been afforded a VA examination with respect to his claim for service connection for a lumbar spine disorder. Based on the above, the Board finds the low threshold necessary to provide an examination has been established in this case. McLendon v. Nicholson, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect this fact and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Verify through official sources, including any financial records through DFAS, the Veteran's periods of ACDUTRA and INACDUTRA in the Louisiana National Guard. All records and/or responses received should be associated with the claims file. Upon the receipt of such records, prepare a memorandum identifying the dates and nature (active duty, ACDUTRA, INACDUTRA) of the Veteran's military service. 3. Contact any appropriate source to obtain any outstanding National Guard service treatment and personnel records. The AOJ must directly request the Veteran's records from the Louisiana National Guard. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 4. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's hypertension began in or is otherwise related to the Veteran's active duty service, to include any period(s) of active duty, ACDUTRA or INACDUTRA. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's lumbar spine disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's lumbar spine disorder began in or is otherwise related to the Veteran's active duty service, to include any period(s) of active duty, ACDUTRA or INACDUTRA. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, Counsel 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.