Citation Nr: 0734115 Decision Date: 10/30/07 Archive Date: 11/07/07 DOCKET NO. 04-05 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Ronald Aronds, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran had active service from January 1944 to February 1946. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to service connection for hypertension. When this matter was last before the Board in January 2005, in pertinent part, the Board confirmed the denial of the claim of entitlement to service connection for hypertension. The veteran appealed the Board's January 2005 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2007 Memorandum Decision, the Court set aside that part of the Board's decision that had denied service connection for hypertension, and remanded the matter to the Board for further development and re-adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Memorandum Decision outlined the fundamental bases for the remand of the issue on appeal. In setting aside the Board's January 2005 denial of service connection for hypertension, the Memorandum Decision took exception to the fact that the Board: 1) failed to acknowledge documentary evidence of a 1949 VA denial of life insurance due to high blood pressure; 2) failed to suggest alternative evidence that might be sought as a replacement for any service medical records that were not in the claims file regarding the veteran's extended hospital stay while assigned in New Guinea; 3) failed to discuss the application of the heightened duty to assist a veteran when records are lost; and 4) failed to provide medical authority for its conclusion that the veteran's reported blood pressure readings during active service were "normal." With respect to the duty to assist in obtaining the veteran's service medical records, in a case in which a veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). This heightened duty includes contacting the individual service department in attempt to seek all of the records that the veteran believes to be relevant. VA's duty to assist also includes obtaining a medical opinion whenever such an opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). 38 C.F.R. § 4.1 provides further that "It is...essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.") See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). ("[F]ulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."). Although the veteran was provided an appropriate examination in January 2002, the examiner did not provide an opinion regarding the etiology of the veteran's hypertension. Consequently, the necessity for appropriate further examination is shown for the proper assessment of the appellant's claims noted in this Remand section. 38 U.S.C.A. § 5103A. In accordance with the terms of the Memorandum Decision, this case is REMANDED for the following: 1. Complete the development of the evidence with regard to the use of alternative methods for obtaining any missing service medical records in accordance with the provisions of the VA Adjudication Procedure Manual, M21-1, including, but not limited to, contacting the National Personnel Records Center (NPRC) (or any other appropriate agency/office) and request all available SGO records or morning reports documenting the veteran's medical care. Also contact the service department itself for the purpose of obtaining service medical records directly from the U.S. Navy. In that regard, the veteran's allegations with respect to the records alleged to be missing should be consulted and referenced to the service department. 2. After the completion of # 1, schedule the veteran for an appropriate VA examination by a physician skilled in the diagnosis and treatment of hypertension to determine whether the veteran has current hypertension, and if found, whether it bears any relationship to service, including any treatment or injuries identified in the service medical records. The claims file and a separate copy of this remand must be made available to and pertinent documents therein reviewed by the examiner in conjunction with the examination. The examiner must annotate in the examination report that the claims file was in fact made available for review and reviewed in conjunction with the examination. Any further indicated special tests and studies should be conducted. The examiner must address the following medical question for the disability at issue: Is it at least as likely as not (a 50 percent or greater probability) that hypertension, if found, is related to service on any basis? A complete rationale for any opinions expressed should be provided. 3. Thereafter, the claims file should be reviewed to ensure that all of the foregoing requested development has been completed, and pursue any further development required by the record at hand, including further medical examination. In particular, the requested examination report and medical opinion should be reviewed to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, corrective procedures should be implemented. 4. Then, readjudicate the veteran's claim of entitlement to service connection for hypertension. If any benefit requested on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case (SSOC) should be issued. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claims currently on appeal. A reasonable period of time for a response should be afforded for response. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified by VA; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection and result in a denial. 38 C.F.R. § 3.655 (2007). 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).