Citation Nr: 1032969 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 04-38 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that, in part, denied the claim for service connection for hypertension. In a September 2008 decision, the Board, in part, denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). He did not contest the claims for service connection for other disabilities also denied in the September 2008 Board decision. In a March 2010 order, the Court granted a joint motion and remanded the claim for further adjudication. The Court dismissed the appeal as to the other claims for service connection. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Pursuant to the joint motion, the Board finds that further development is required. The Veteran contends that his hypertension was aggravated by his service-connected diabetes mellitus. In June 2004, the RO scheduled the Veteran for a VA examination to determine whether his hypertension was proximately due to, the direct result of, or aggravated by his service-connected diabetes mellitus. Later that month, the Veteran underwent VA heart and diabetes mellitus examinations. The VA examination reports reflect diagnoses of coronary artery disease likely contributed to by diabetes and essential hypertension, respectively. Neither examiner provided an opinion on whether the Veteran's hypertension was related to his service-connected diabetes mellitus. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). If a VA examination is inadequate, the Board must remand the case. Thus, the RO should obtain a supplemental opinion that addresses the above question. Lastly, further RO action is needed to comply with the notice requirements of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). The VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran has not been provided notice of the type of evidence necessary to establish a disability rating or effective date for the claim on appeal. Thus, proper notice should be provided on remand. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the Veteran and his representative corrective VCAA notice that includes an explanation of the information or evidence needed to establish a disability rating and effective date for the claim on appeal in accordance with Dingess, 19 Vet. App. 473. 2. The RO should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. 3. The RO should then arrange for the Veteran's claims file to be reviewed by the examiner who prepared the June 2004 VA heart examination report (or a suitable substitute if that examiner is unavailable) to obtain a supplemental opinion that addresses the nature, extent, and etiology of the Veteran's hypertension. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the hypertension was caused or aggravated beyond the natural progress of the disease (representing a permanent worsening of such disability) by the service-connected diabetes mellitus. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A complete rationale should be given for all opinions and conclusions. 4. Thereafter, the RO should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an opportunity to respond. 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). _________________________________________________ DEBORAH W. SINGLETON 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).