Citation Nr: 1015463 Decision Date: 04/28/10 Archive Date: 05/06/10 DOCKET NO. 08-13 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected Type II diabetes mellitus. 2. Entitlement to an initial evaluation in excess of 20 percent for Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from February 1965 to January 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the Veteran's claims file was subsequently transferred to the Los Angeles RO. The Veteran provided testimony at a January 2010 Travel Board hearing before the undersigned at the Los Angeles RO. A hearing transcript is in the claims folder. At the hearing, the Veteran testified that he has detached retinas in both eyes which he believes may be related to his diabetes. The issue of service connection for bilateral detached retinas has thus been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 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 Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). As much as the Board would prefer to resolve the appeal at this time, preliminary review reveals that the information in the record before us is inadequate to make an informed determination, and discloses a need for further development prior to final appellate review. In this regard, the Board is of the opinion that VA's duty to assist includes obtaining updated outpatient treatment records from the Sepulveda and West Los Angeles VA Medical Centers (VAMCs) and affording the Veteran a VA examination under the facts and circumstances of this case, for these reasons: First, at the January 2010 Board hearing, the Veteran submitted a November 2009 list of medications from the West Los Angeles VAMC that included insulin, with instructions to inject 10 units under the skin daily. However, there are no treatment records associated with the list of prescription medications. Moreover, although the claims file contains outpatient treatment records from both the West Los Angeles VAMC and the Sepulveda VAMC, where the Veteran has treatment for his diabetes, there are no records dated beyond March 2008. Records up until March 2008 reflect that the Veteran was a non-insulin-dependent diabetic. Thus, the Board finds that updated outpatient treatment records from both the West Los Angeles and Sepulveda VAMCs need to be obtained to determine whether the Veteran is entitled to a higher evaluation for diabetes mellitus. Next, the Veteran contends that his hypertension was caused or aggravated by his service-connected diabetes. As there have been no competent opinions regarding the existence of a nexus between the two conditions, the Board finds that a VA examination is necessary to obtain an opinion as to whether the Veteran's hypertension was either caused or aggravated by his service-connected diabetes mellitus in order to make a decision regarding the Veteran's hypertension claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request and obtain any outpatient treatment records relating to the treatment of diabetes mellitus and hypertension from both the West Los Angeles and Sepulveda VAMCs, from March 2008 to the present. 2. Once the updated outpatient treatment records from the VAMCs have been associated with the claims file, schedule the Veteran for a VA examination to determine whether his hypertension was caused or aggravated by his service-connected diabetes mellitus. Any and all studies deemed necessary should be completed. The claims file, including a copy of this Remand, must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should be requested to provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability), or unlikely (i.e., less than a 50/50 probability) that the Veteran's hypertension is related to active service. b. If the Veteran's hypertension is not found to be related to service, the examiner should address the issue of whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by the Veteran's diabetes mellitus, or whether such causation or aggravation is unlikely. If hypertension in its entirety was caused by diabetes mellitus, identify, if possible, the mechanism by which that occurred. Or, if hypertension in its entirety was not caused by diabetes mellitus, has it been aggravated since it arose, i.e., has diabetes mellitus caused a permanent and greater degree of impairment with respect to the hypertension? The examiner must provide an explanation for the opinion expressed. c. If the examiner finds that diabetes mellitus aggravated the hypertension, please provide the following supporting rationale: i. Describe the baseline manifestations of the hypertension which existed before the aggravation occurred; ii. Identify the increased manifestations of the hypertension which, in the expert's opinion, were proximately due to the Veteran's diabetes mellitus; and iii. Explain the medical considerations supporting the opinion that increased manifestations of the hypertension were proximately due to the Veteran's diabetes mellitus. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e. Note: The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. f. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 3. When the development requested has been completed, review the case again on the basis of the additional evidence. If the benefits sought are not granted, furnish the Veteran and his representative a Supplemental Statement of the Case and afford a reasonable opportunity to respond before the record is returned to the Board for further review. 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). __________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).