Citation Nr: 1008158 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 04-07 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hypertension, as a result of exposure to herbicides and as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The RO in Phoenix, Arizona, currently has jurisdiction of the case. The claim was previously remanded by the Board in June 2007, May 2008, and September 2009 for additional development and to address due process concerns. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009), are met. In September 2009, the Board remanded the Veteran's claim in light of 38 C.F.R. § 3.310. More specifically, the Board remanded the claim in order for the AMC to obtain an opinion regarding whether the Veteran's hypertension had been aggravated by his service-connected type II diabetes mellitus. The examiner was also instructed to provide an opinion as to whether the Veteran's hypertension was related to service, to include his presumed exposure to herbicides. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The AMC complied with the remand instructions by scheduling the Veteran for a hypertension examination, which was conducted in October 2009, but the remand instructions related to the content of the examination report were not completely complied with. For reasons to be discussed in more detail below, the Board finds that the AMC should send the Veteran's claims file back to the examiner who conducted the October 2009 examination for a clarified opinion. In pertinent part, the examiner mistakenly indicated that he was to address the question of whether the Veteran's diabetes mellitus was secondary to hypertension before reporting that it was his opinion that the Veteran's diabetes mellitus was neither caused, nor aggravated, by the antecedent hypertension. The examiner failed to address the question of whether the Veteran's diabetes mellitus either caused or aggravated his documented hypertension. This must be accomplished on remand. The October 2009 VA examiner reported reviewing the Veteran's claims folder, but indicated that the Veteran's discharge physical examination was not available. The examiner also noted that the availability of this record might change his opinion regarding whether the Veteran's hypertension was related to service, to include his presumed exposure to herbicides. It was the examiner's opinion that the Veteran's hypertension was neither due to, nor cause by, exposure to herbicides. No opinion regarding whether the Veteran's hypertension had its onset during, or is related to, active service (beyond the presumed exposure to herbicides) was provided. Review of the Veteran's service treatment records, which were provided to the VA examiner, reveal that they do include an August 28, 1968 report of medical examination conducted in conjunction with the Veteran's release from active duty. At the time of this discharge examination, the Veteran's sitting blood pressure was recorded as 130/90. On remand, the examiner is specifically instructed to review this record and provide an opinion regarding whether it is at least as likely as not that any current hypertension had its onset during active service or is related to the Veteran's military service, including his presumed exposure to herbicides. As the claim must be remanded for the foregoing reasons, the RO/AMC should also make efforts to obtain any records dated from 1977, forward, from the VA Hospital in Columbus, Indiana. This is so because at the time of the October 2009 VA examination, the Veteran reported first beginning treatment for hypertension from this facility at that time. Recent VA treatment records should also be obtained. The Board notes that a June 2002 primary care record from the VA Medical Center (VAMC) in Indianapolis reports that the Veteran was seen as a new patient and was transferring his primary care needs from Dr. J. Sheehy and Dr. D. LeGrand, who was his vascular surgeon. At the time of the primary care note, the Veteran's present illnesses included hypertension. As such, it appears that these two doctors may have been treating the Veteran's hypertension. On remand, the RO/AMC should make efforts to obtain the Veteran's complete treatment records from these private medical providers. Lastly, the issue of entitlement to service connection for coronary artery disease, to include as secondary to type II diabetes mellitus, has been raised by the record. See January 2010 Informal Hearing Presentation. The Veteran further maintains that his hypertension is related to his coronary artery disease. The issue of service connection for coronary artery disease, however, has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Because adjudication of the claim for service connection for coronary artery disease may impact adjudication of the Veteran's claims for service connection for hypertension as secondary to coronary artery disease, the Board concludes that these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Given the foregoing, the claims for service connection for coronary artery disease must also be remanded. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2009). Accordingly, the case is REMANDED for the following action: 1. After complying with the duty to notify and assist, adjudicate the claim for service connection for coronary artery disease as a result of exposure to herbicides and as secondary to diabetes mellitus. Provide the Veteran with appropriate notice of this decision and of his appellate rights. 2. Obtain the Veteran's records related to treatment for hypertension from the Northern Arizona Health Care System, Anthem and Prescott Community Based Outpatient Clinics, dated since September 2009. 3. Obtain the Veteran's complete treatment records from the VA Hospital in Columbus, Indiana, dated from 1977, forward. If these records are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 4. Make arrangements to obtain the Veteran's complete treatment records from Dr. J. Sheehy and Dr. D. LeGrand. 5. When the above development has been completed, return the claims file and a copy of this remand to the VA examiner who conducted the October 2009 hypertension examination. The examiner should be asked to review the claims folder, including the August 28, 1968 report of medical examination that recorded a sitting blood pressure reading of 130/90. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hypertension had its onset during active service or is related to the Veteran's military service, including his presumed exposure to herbicides. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's type II diabetes mellitus either (a) caused or (b) aggravated (i.e., caused a permanent increase in severity) his hypertension. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's coronary artery disease either (a) caused or (b) aggravated (i.e., caused a permanent increase in severity) his hypertension. If the October 2009 VA examiner is not available, then a different examiner should be asked to review the claims folder and provide the requested opinions. If the requested opinions cannot be given without further examination of the Veteran, then a new VA examination should be scheduled. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 6. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 7. Finally, readjudicate the claim for service connection for hypertension as a result of exposure to herbicides and as secondary to diabetes mellitus. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ P.M. DILORENZO 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).