Citation Nr: 1104776 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 08-25 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus Type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2010, the Veteran testified during a hearing conducted at the RO before the undersigned. A transcript of the proceeding is of record. The Board notes that several other matters, addressed by the RO as part of the December 2006 rating decision, were included as part of the Veteran's March 2007 notice of disagreement. These issues were subsequently addressed as part of the statement of the case (SOC) issued the Veteran in June 2008. However, the Veteran specifically limited his appeal to the issue now on appeal (see August 2008 VA Form 9 (substantive 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 claims that service connection for hypertension is warranted, as being secondary to his service-connected diabetes mellitus Type II. At his June 2010 hearing, he testified (see page five of hearing transcript (transcript)) that he was first diagnosed by a Dr. C. with diabetes about 10 to 12 years earlier. Review of the claims file seems to first show such a diagnosis was first provided in 2001. See February 2001 VA clinic visit outpatient record. He added that he was then, two years later, diagnosed with hypertension. However, the February 2001 VA outpatient treatment record also included a diagnosis of uncontrolled hypertension. Therefore, the medical record does not demonstrate that the diabetes mellitus Type II was diagnosed before the hypertension. He denied having problems with hypertension before he was diagnosed with diabetes. See page six of transcript. He added he took medications for treatment of both conditions. Id. The report of an October 2006 VA peripheral nerves examination shows that the Veteran was to be examined to determine if his hypertension was essential hypertension or due to a specific complication of his diabetes mellitus. The examiner commented that the claims folder had been reviewed. The Veteran gave a history of being treated by a private physician for hypertension before he began to receive VA treatment. [As these private medical records may contain information critical to the matter at hand, 38 C.F.R. § 3.159(c) (2010) mandates that VA assist in obtaining such records.] He added that he had been diagnosed with diabetes mellitus Type II for about the same period of time as he had been treated for hypertension. The supplied diagnoses included essential hypertension. The examiner opined that it was less likely than not that the hypertension was "caused by or the result of" the Veteran's diabetes mellitus. The Board notes that service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). While the examiner in October 2006 opined - negatively -- concerning the question of whether or not the Veteran's hypertension was either caused by or the result of his service- connected diabetes mellitus Type II, the opinion did not include comment as to the above-discussed question of "aggravation." Allen. The Board observes that the United States Court of Appeals for Veterans Claims (Court), in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), found that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim. Here, as discussed above, the examination findings set out as part of the October 2006 VA examination are not adequate to enable the Board to provide a fully informed evaluation of the Veteran's claim. As such, additional action is therefore required. Accordingly, the matter is again REMANDED to the RO for the following action: 1. The RO/AMC should send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. He should be asked to complete (including full names and addresses, to the extent possible) and return the signed form, so that VA can obtain all private medical records pertaining to treatment afforded him before he began being treated by VA. Any records obtained should be associated with the other evidence in the claims file. 2. Following the development sought in 1. above, the RO/AMC should arrange for the Veteran's claims folder to be reviewed by an appropriate medical professional, in order so that opinions can be supplied concerning the etiology of the Veteran's claimed hypertension disorder. All studies, tests and evaluations that the examiner deems necessary should be conducted. The examiner is requested to review all pertinent records associated with the claims file. Thereafter, the following medical questions should be addressed: a. Is it at least as likely as not that any hypertension disability is due to the Veteran's service-connected diabetes mellitus Type II? b. Is it is at least as likely as not that any hypertension disability is aggravated by the service-connected diabetes mellitus Type II? If any hypertension disability is found to be aggravated by the service-connected diabetes mellitus Type II, the examiner should, to the extent possible, describe the baseline level of the hypertension disability prior to any such aggravation by the service-connected diabetes mellitus Type II. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO must ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action has not been undertaken or is deficient in any manner, the RO must take appropriate corrective action. 4. After the completion of all indicated development, the RO should readjudicate the claim of service connection for hypertension, as secondary to the service- connected diabetes mellitus Type II in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental SOC (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 Court 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). _________________________________________________ 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) (2009).