Citation NR: 9729819 Decision Date: 08/28/97 Archive Date: 09/04/97 DOCKET NO. 90-41 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES Entitlement to service connection for diabetes mellitus secondary to hypertension and its treatment. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. Reichelderfer, Associate Counsel INTRODUCTION The veteran served on active duty from April 1958 to January 1962, from November 1963 to August 1965, and from February 1969 to June 1973. This appeal arises from an April 1990 rating decision from the Albuquerque, New Mexico, Regional Office (RO). The veteran perfected an appeal to the RO’s decision and in a January 1991 decision by the Board of Veterans’ Appeals (Board), service connection for diabetes mellitus secondary to hypertension and a disorder manifested by elevated blood sugar levels and glucose intolerance secondary to hypertension were denied. The veteran appealed this decision to the U.S. Court of Veterans Appeals (Court). In March 1992, the Court vacated the Board’s decision and remanded the case to the Board based on a motion for remand promulgated by the Secretary of the Department of Veterans Affairs (VA). [citation redacted]. The Board in turn remanded the case to the RO in April 1995 for further evidentiary development and adjudication. The case is again before the Board for consideration. An issue originally perfected for appellate review included service connection for a disorder manifested by glucose intolerance and elevated blood sugar levels secondary to hypertension. The September 1995 VA examination report indicates that the veteran had diabetes mellitus type II. Therefore, the issue of service connection for a disorder manifested by glucose intolerance and elevated blood sugar levels is consolidated with the issue of service connection for diabetes mellitus secondary to hypertension and its treatment. Additionally, the motion for remand and the Court’s order directed that consideration be given to the applicability of 38 U.S.C. § 1151 since the veteran claimed additional disability due to VA treatment. This issue is also consolidated with the issue of service connection for diabetes mellitus secondary to hypertension and its treatment. REMAND The veteran contends, in essence, that he developed diabetes mellitus due to VA treatment for his service connected hypertension. After a review of the record, it is found that this case must be returned to the RO for further evidentiary development and adjudication. The veteran claims that his hypertension was treated by the VA with Dyazide and later with Tenormin (Atenolol). He claims that the Tenormin caused him to develop glucose intolerance and later diabetes mellitus. In its April 1995 remand decision, the Board requested that the veteran be scheduled for a VA examination to determine if he had diabetes mellitus and to ascertain the etiology of any diagnosed disorder, including its relationship to beta- blockers. In a September 1995 VA examination report, the examiner established a diagnosis of diabetes mellitus type II and indicated that the beta-blocker Atenolol had nothing to do with his developing diabetes mellitus. Additionally, the report indicates that the etiology of diabetes was decreased insulin production from the islets of Langerhans in the pancreas. However, the examiner did not indicate whether the veteran’s hypertension caused his diabetes mellitus or whether treatment with other drugs had caused diabetes. Therefore, this case will be returned to the RO for further examination of the veteran to ascertain if his hypertension or other drug treatment for hypertension caused his current diabetes mellitus. The veteran claims that his hypertension was treated with Dyazide. However, there is no medical evidence in the record to support this contention. The earliest VA treatment records in the claims file are dated in November 1985 and the earliest private treatment records are dated in June 1985. Records of treatment prior to 1985 may provide probative evidence concerning the veteran’s claim. Therefore, this case will be returned to the RO to attempt to obtain records of treatment for his hypertension prior to 1985. It is noted that the veteran’s representative at the RO referenced medical texts and publications in several statements in support of the veteran’s claim. However, copies of such materials are not included with the claims file. Without such materials, the Board is unable to assess their probative value and can only consider the representative’s statements as argument. Therefore, if the representative wishes to introduce materials from medical texts and publications in support of the veteran’s claim, these materials should be submitted to the RO for consideration and inclusion with the claims file. The Court has held that the duty to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1996), as set forth in Littke v. Derwinski, 1 Vet.App. 90 (1990), requires that the VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, this case is REMANDED for the following: 1. The RO should ascertain from the veteran the name and address of the VA and/or private health care providers where he received treatment for his hypertension from 1974 through 1985. 2. Following receipt of the above requested information, the RO should request legible copies of pertinent medical records, following receipt of any necessary authorizations for the release of such information. If any pertinent VA records have been retired to a records repository, action should be taken to retrieve such records. 3. The RO should request that the veteran be scheduled for a VA examination by a specialist in internal medicine to ascertain the origin of his diabetes mellitus. All appropriate tests and studies should be conducted. The examiner should be specifically requested to render an opinion, based on examination of the veteran and a review of the claims file, as to whether the veteran’s hypertension has caused diabetes mellitus. The examiner should also render an opinion as to whether treatment for hypertension with drugs other than beta-blockers, including treatment with Dyazide, caused him to develop his currently diagnosed diabetes mellitus. The examiner should present all findings, and the reasons and bases therefor, in a clear, comprehensive, and legible manner on the examination report. The claims folder is to be made available to the examiner for review prior to evaluation of the veteran. 4. The RO should afford the veteran and his representative the opportunity to submit additional evidence in support of his claim. 5. Following completion of the above, the RO should again review the veteran’s claim and determine whether service connection for diabetes mellitus due to hypertension and its treatment can be granted. The RO should conduct any further evidentiary development deemed appropriate. If the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case, and be apprised of the applicable period of time within which to respond. The case should then be returned to the Board for further consideration, as appropriate. The Board intimates no opinion as to the outcome of this case. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional evidence and to comply with due process considerations. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACK W. BLASINGAME Member, Board of Veterans' Appeals A proceeding instituted before the Board of Veterans’ Appeals (Board) may be assigned to an individual Member of the Board or to a panel of not less than three Members of the Board for a determination. 38 U.S.C.A. § 7102 (West Supp. 1996) (amending 38 U.S.C.A. § 7102 (West 1991)). This proceeding was assigned to the Board Member whose name and signature appear above. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1996). - 2 -