Citation Nr: 1116809 Decision Date: 04/29/11 Archive Date: 05/05/11 DOCKET NO. 07-18 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran's active military service extended from January 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In November 2008, a hearing was held before the under signed Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). A copy of the transcript of that hearing is of record. The case was previously before the Board in January 2009 and September 2009, when it was remanded for examination of the Veteran and medical opinions. Unfortunately, the medical opinions do not adequately address the directives set forth in the September 2009 remand, and the appeal is once 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 The Veteran seeks service connection for hypertension. Specifically, the Veteran asserts that he has developed hypertension secondary to his service-connected diabetes mellitus. Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. The evidence of record reveals that the Veteran was first diagnosed with diabetes mellitus in 2004 and that he was subsequently diagnosed with hypertension in 2005. Although the Veteran had some slightly elevated blood pressure readings prior to his diagnosis of diabetes mellitus, the record does not reflect that he had consistently high, uncontrollable blood pressure until shortly after he was diagnosed with diabetes. Private treatment records submitted by the Veteran show relatively normal blood pressure readings spanning from 1999 through 2002. VA treatment records from June 2003 through September 2003 likewise noted normal blood pressure readings of 131/89 and 133/77. It was not until 2004 that the Veteran's blood pressure readings reflect a sharp increase on a consistent basis, and it was thereafter, in 2005 that the Veteran was diagnosed with hypertension, after being diagnosed with diabetes. In October 2006, a VA Compensation and Pension examination of the Veteran was conducted. The medical opinion expressed by the examining physician was that the Veteran's hypertension was not related to his service-connected diabetes mellitus, despite noting that the diabetes was diagnosed prior to the hypertension, which was not diagnosed until 2005. The examiner did not, however, provide a complete rationale for this opinion. Moreover, it should be noted that service connection was granted in a July 2008 rating decision for a cardiovascular disorder, status post carotid endarterectomy. The grant of service connection was based upon the medical opinion expressed in a January 2008 VA Compensation and Pension examination which indicated that this disorder was related to the veteran's diabetes mellitus. Also of note is a VA May 2006 patient education record which specifically indicates that "people with diabetes are twice as likely to develop high blood pressure (hypertension) than people without diabetes." The VA examiner in October 2006 did not consider this note, or comment on its relevance. Based upon the medical education material provided by VA in May 2006, and the 2008 VA examination report which indicates that the veteran's claimed cardiovascular disorder is related to the service-connected diabetes mellitus, as well as the fact that the Veteran's diabetes was diagnosed prior to the hypertension, the Board ordered another Compensation and Pension examination to be conducted in a January 2009 Remand. The Remand order specifically requested a medical opinion which asked: [I]s it as least as likely as not (a probability of 50 percent or greater) that the veteran's hypertension related to, caused by, or made worse by, the veteran's service-connected diabetes mellitus (to include medication prescribed for diabetes mellitus)? The Board notes in this respect: the hypertension was diagnosed after the Veteran's service-connected diabetes mellitus; his carotid artery disease has also been related to his diabetes mellitus; and VA medical educational information indicates people with diabetes mellitus are twice as likely to develop hypertension. The VA medical opinion dated March 2009 did not address whether the Veteran's service-connected diabetes mellitus aggravated the Veteran's nonservice connected hypertension. See Allen v. Brown, 7 Vet. App. 439 (1995). Similarly, the opinion did not address whether there was any link between the newly service-connected status post carotid endarterectomy and the hypertension. As such, the matter was remanded again in September 2009 for another medical opinion. In a September 2009 addendum, the examiner noted, "This Veteran had elevated BP prior to diagnosis in 2005 of HTN as far back as 2003 164/89 and 2004 167/96 and 190/108 prior to diagnosis of DM. His HTN is NOT caused by the diabetes." The examiner further opined that it was less likely than not that the Veteran's diabetes was causing aggravation of the hypertension because there was no literature to support such a theory in that Veteran. The examiner noted that neither his diabetes nor his hypertension was in good control. The examiner also pointed out that the Veteran's cardiovascular disease had not been fully documented, as he refused further evaluation subsequent to a positive stress test. The examiner felt that the Veteran's carotid stenosis could have been attributed to a history of smoking and hyperlipidemia, and noted that the Veteran's kidney function was not compromised. Finally, the examiner opined that the Veteran's sleep apnea was a more likely factor in contributing to aggravation of hypertension. Unfortunately, the above September 2009 opinion is not adequate. The basis of the opinion is premised on the Veteran having elevated blood pressure prior to the diagnosis of hypertension in 2005. The diabetes was diagnosed in 2004 and the hypertension was diagnosed in 2005. Although there were certainly some elevated blood pressure readings noted prior to the diabetes diagnosis, this was not consistently shown. As the Veteran noted in a March 2011 statement, he was unclear as to where VA obtained elevated blood pressure readings going back to 2003 and asserted that his blood pressure readings from 2002 were relatively normal. Indeed a review of the file shows that blood pressure readings from 2002 and 2003 were relatively normal as described above, and moreover, the Board is unable to locate the blood pressure reading of 190/108 that the September 2009 VA opinion cites to. The Board was able to find the sited blood pressure reading in January 2004 of 167/96 which comes from a January 14, 2004 VA progress note; however, and importantly, it is noted that the Veteran's blood pressure at that time was "much higher than usual." This evidence tends to show that the Veteran did not have a diagnosis of hypertension prior to that date and it does tend to show that the Veteran's blood pressure began to rise at around the same time of the diabetes diagnosis. What remains unclear is whether this increase in blood pressure and the diagnosis of diabetes is a mere coincidence or whether there is some connection between the two. Because the September 2009 opinion is based on an inaccurate premise that the Veteran's hypertension predated the diabetes, it has no probative value, and another VA examination is necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to the claim on appeal that are not already of record, including but not limited to all VA records dated in 2003 and 2004. 2. The Veteran should be accorded a VA examination for hypertension. The report of examination should include a detailed account of all manifestations of hypertension and cardiovascular disease found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should keep in mind that the hypertension was diagnosed in 2005 after the Veteran's blood pressure readings were noted to be consistently high beginning in 2004, coincident with the Veteran's service-connected diabetes mellitus which was diagnosed in 2004; his carotid artery disease has also been related to his diabetes mellitus; and VA medical educational information in the Veteran's claims file indicates people with diabetes mellitus are twice as likely to develop hypertension. Specifically, is it as least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is the result of or due to the Veteran's service-connected diabetes mellitus (to include medication prescribed for diabetes mellitus)? If not, is the hypertension aggravated (i.e. permanently worsened) beyond the natural progression by the service-connected diabetes mellitus (to include medication prescribed for diabetes mellitus)? In answering these questions, please indicate if the Veteran's development of hypertension coincident with the development of diabetes mellitus is at least as likely as not a mere coincidence or whether there is some relationship between the two. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide complete rationale for all conclusions reached. 3. Following the above, readjudicate the Veteran's claim. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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. 2010). _________________________________________________ S. S. TOTH 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) (2010).