Citation Nr: 1000165 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-26 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for optic nerve atrophy, to include as secondary to diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange, and/or as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from January 1968 to December 1971. He received the Vietnam Service Medal, the Vietnam Campaign Medal, and the Republic of Vietnam Armed Forces Meritorious Unit Commendation. These matters come before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul. Minnesota. Although the Veteran filed a notice of disagreement for the issue of entitlement to service connection for diabetes mellitus, service connection was granted prior to the filing of a substantive appeal; therefore, that issue is not for appellate consideration. 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 appellant contends that he has a hypertension due to Agent Orange or secondary to diabetes mellitus, and that he has optic nerve atrophy aggravated by diabetes mellitus. For the reasons noted below, the Board finds that VA should attempt to obtain any pertinent VA and/or private medical records, not already in its possession, and afford the appellant additional VA examinations. Service connection may be granted for disability which is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Harder v. Brown, 5 Vet. App. 183, 187-89 (1993). Additional evidence would be useful for the Board to determine whether either condition is aggravated by his diabetes mellitus. Hypertension The earliest clinical evidence of hypertension is a February 1998 private medical record which reflects that the Veteran had "hypertension, now controlled". The Veteran was diagnosed with diabetes mellitus in September 2002. (See December 2002 private medical report). Thus, the record reflects that the Veteran's diagnosis of hypertension predates his diagnosis of diabetes by at least four and a half years. A March 2004 private medical report reflects that the Veteran's hypertension remained under good control. A March 2005 private medical record reflects that the Veteran remained on Lisinopril, 10 mg daily, for his blood pressure. It is noted that the plan was to change Lisinopril to Zestoretic (Hydrochlorothiazide and Lisinopril) 10/12.5; however, it is not clear if the change in medication was for hypertension or diabetic reasons. The Veteran's blood pressure was 130/90. A repeat blood pressure reading was 150/94. The Veteran was to return for a recheck of his blood pressure in two months. The Board notes that records for such a return visit in May 2005 are not associated with the claims file. An October 2005 private medical record reflects that the Veteran's "blood pressure was quite high" at his previous visit and HCTZ (Hydrochlorothiazide), was added to his daily 10 mg of Lisinopril. The Veteran's blood pressure was 110/90 at the October 2005 visit. A December 2005 private medical report reflects that the Veteran's hypertension was well controlled. The report also reflects that the Veteran was last seen in February 2005 when his blood pressure was "borderline." The Board notes that this does not correlate to the private medical records which reflect that the Veteran was seen by the same doctor in March and October 2005. There are no February 2005 records associated with the claims file. An April 2006 VA medical report reflects that the Veteran reported that he has not required an increase in his hypertension medication since he was diagnosed with diabetes. The examiner opined that the Veteran's hypertension is not related to diabetes as it predates the diabetes and there has been no change in medication or worsening of hypertension since diabetes. Based on the private medical records noted above, the Board finds that clarification of the status of the Veteran's hypertension from September 2002 is warranted. Specifically, the Board is unclear as to the reasons for the change in the Veteran's medication and if the high blood pressure reading noted in the October 2005 private medical report was acute and transitory, or a chronic increase in his hypertension condition which warranted a change in medication. In this regard, the Board finds that VA should attempt to obtain any additional private medical records, prior to obtaining another VA examination and opinion. With regard to hypertension, the Board notes that VA does not currently have a stay on claims for entitlement to service connection for hypertension based upon exposure to Agent Orange. The Secretary has not determined that a presumption of service connection is warranted for hypertension. To the contrary, the Secretary has determined that a positive association does not exist between herbicide exposure and circulatory disorders, to include hypertension. Optic Nerve Atrophy The Veteran avers that his optic nerve atrophy is either causally related to, or aggravated by, his service-connected diabetes mellitus. A January 1999 private medical record reflects that the Veteran had some optic nerve damage when he was young. A March 2002 VA medical record reflects that the Veteran complained of unexplained visual loss and bilateral central scotomas. The impression was multiple foci demyelination in the paraventricular white matter of both hemispheres. An April 2002 private medical record reflects that the Veteran complained of visual problems over the last two to three years. The diagnosis was "probable new diagnosis of multiple sclerosis" A May 2006 VA medical examination report reflects that the Veteran has a best corrected visual acuity to the right eye of 20/70 and to the left eye of 20/60. He also has "optic atrophy which is secondary to multiple sclerosis." The examiner further noted "these conditions will be aggravated by the diabetes." The report also reflects that the Veteran stated that he was being treated at the University of Minnesota. The Board notes that the claims file contains records from the "River Lake Clinic" in Minnesota; however, there is no evidence that this is related to the University of Minnesota. The Board finds that the May 2006 VA examiner's statement that the Veteran's conditions "will be aggravated" by diabetes does not address whether the Veteran's condition has already been aggravated by his diabetes; therefore, a remand for any additional records and another VA opinion is warranted. The Board finds that a VA opinion as to whether the Veteran's eye condition has already been aggravated by his diabetes, and if so, to what extent would further assist the Board in developing a more complete picture of the Veteran's disability. See 38 C.F.R. § 3.306, and 3.159(c)(4) (stating that a medical examination is necessary if the evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the above issues in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2006), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and any other applicable legal precedent. 2. Request the appellant to complete and submit a VA Form 21-4142, Authorization and Consent to Release Information, for records of treatment of the Veteran by the University of Minnesota, and by any other medical care provider who may possess additional records of treatment for an eye condition, diabetes, and/or hypertension. This should include any treatment records between March 2005 and December 2005 when the Veteran's medication was changed. It should also include any treatment records related to optic nerve damage when the Veteran was young. After obtaining a completed VA Form 21- 4142, the RO should attempt to obtain any pertinent medical records, to include VA records, not already associated with the claims file. If any of the above searches for any such records yields negative results, this fact should be noted in the claims folder. Any documents received by VA should be associated with the claims folder 3. Thereafter, the appellant should be afforded VA examinations to determine the extent and etiology of any current eye condition and hypertension. All necessary tests should be performed. The examiners are requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the appellant's diabetes mellitus has aggravated his hypertension or eye condition, and if so, to what extent. The VA examiners are advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiners are requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The examiners should review the claims folder, to include this remand, and this fact should be noted in the accompanying medical reports. The appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2009). 4. Thereafter, readjudicate the issues of entitlement to service connection for hypertension, to include as due to exposure to Agent Orange and secondary to diabetes mellitus, and entitlement to service connection for an eye condition, to include, optic nerve atrophy, to include as aggravated by diabetes mellitus. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 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. 2009). _________________________________________________ U. R. POWELL 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) (2009).