Citation Nr: 0812027 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-38 582A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1969. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied the benefit sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran has claimed entitlement to service connection for hypertension, which he believes is etiologically related to his service-connected diabetes mellitus. The evidence of record includes the veteran's service medical records; while these do not demonstrate any diagnoses of hypertension, there was one elevated reading (150/100) at the time of a June 1969 motor vehicle accident. However, there were no other elevated readings noted in these records and his blood pressure was normal at the time of his August 1969 separation examination. Post-service medical records do not show hypertension for many years after the veteran's separation from service. VA treatment records developed between 2004 and 2007 show treatment for hypertension but do not link it to the veteran's diabetes. The report of a May 2003 VA examination provides that the examiner reviewed the veteran's claims file thoroughly. The examiner observes that the veteran's hypertension was first diagnosed in 1998, at age 52. The report provides the pertinent medical history, current treatment and results of physical examination. The diagnosis was type 2 diabetes and hypertension, presently not treated due to patient's noncompliance. The examiner expressed the opinion that it was not at least as likely as not that the veteran's hypertension was secondary to his diabetes. The report of a May 2007 VA examination provides the veteran's pertinent medical history, current treatment, and current complaints. The veteran was currently under treatment and restricted diet for diabetes. As for hypertension, the veteran reported that he had it after he was diagnosed with diabetes but did not remember the actual onset. The hypertension was not caused or related to the diabetes. The hypertension's onset was in the veteran's 40s, although the veteran did not remember the exact date. He was currently taking medication for it. The diagnoses were insulin-requiring diabetes mellitus type 2; and essential hypertension, medical therapy, not caused by diabetes mellitus. The veteran and his representative have explicitly argued that his diabetes has aggravated his nonservice-connected hypertension beyond its natural progression, and that service connection is thus warranted pursuant to 38 C.F.R. § 3.310(b) (2007). 38 C.F.R. § 3.310(b) reads as follows: Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. After reviewing the reports of the May 2003 and May 2007 VA examinations, the Board finds that they do not address the question of whether the veteran's service-connected diabetes mellitus has aggravated the nonservice-connected hypertension beyond its natural progression such that service connection is justified under 38 C.F.R. § 3.310(b). As a consequence, it is found that an answer to this question must be obtained before a final determination can be made in this case. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner that conducted the May 2007 VA examination. The examiner must be asked to review the examination report and the claims folder and offer an opinion as to whether it is at least as likely as not (that is, to at least a 50-50 degree of probability) that any increase in severity of the nonservice-connected hypertension is proximately due to or the result of the veteran's service-connected diabetes mellitus, and not due to the natural progress of the hypertension. See 38 C.F.R. § 3.310(b) (2007). The examiner must indicate in the report that the claims folder was reviewed. A complete rationale for the opinion expressed must be provided. If the examiner who conducted the May 2007 examination is no longer available, the veteran must be afforded a complete VA cardiovascular examination in order to render the above-requested opinion. The veteran must be advised of the importance of reporting to any VA examinations deemed necessary, and of the consequences of failing to so report. See 38 C.F.R. § 3.655 (2007). 2. The veteran's claim for service connection for hypertension must then be readjudicated. If the decision remains adverse to the appellant, he and his representative must be provided with an appropriate supplemental statement of the case, as well as an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2007). _________________________________________________ L. M. BARNARD Acting 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).