Citation Nr: 1229331 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 08-31 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 2. Entitlement to an effective date earlier than September 26, 2006, for the grant of service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his brother S.A. ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2011 and December 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and Atlanta, Georgia. Jurisdiction over the appeal is retained by the St. Petersburg RO. The Veteran testified before a Decision Review Officer (DRO) during a formal hearing held at the RO in St. Petersburg, Florida in January 2010. In May 2012, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing at the RO. Transcripts of these hearings have been associated with the claims file. In February 2012, the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) claiming entitlement to a total disability rating due to his service-connected disabilities (TDIU). Thus, the issue of a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The claims file reflects that the Veteran was granted service connection for a residual scar on his left leg by way of a May 2011 rating decision, with an initial noncompensable rating assigned for the disability. The noncompensable rating was continued in a December 2011 rating decision. Also in the December 2011 rating decision, the RO denied the Veteran's claims for service connection for erectile dysfunction, hearing loss, and tinnitus. In December 2011, the Veteran filed a notice of disagreement (NOD) with respect to the disability rating assigned for the scar disability and the denial of the erectile dysfunction, hearing loss, and tinnitus claims. Under these circumstances, the Board would typically remand these matters for issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). However, in a February 2012 letter, the RO acknowledged that the Veteran filed an NOD with respect to these issues. The RO also indicated that it would attempt to resolve the disagreement, but that, if resolution was not possible, it would provide the Veteran with an SOC. Thus, given the RO's acknowledgement of receiving the Veteran's NOD and its anticipation of providing him a SOC, if needed, the Board believes that a Remand under Manlincon is not necessary. The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for diabetes mellitus on September 26, 2007. 2. There is not clear evidence of any administrative irregularity by the AOJ, and VA received no communication from the Veteran, or any authorized representative, that constitutes a formal claim or may be construed as an informal claim for service connection for diabetes mellitus prior to September 26, 2007. (CONTINUED NEXT PAGE) CONCLUSION OF LAW The criteria for the assignment of an effective date prior to September 26, 2006, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for diabetes mellitus. So the claim, as it arose in its initial context, has been substantiated, indeed granted. Therefore, additional VCAA notice concerning a "downstream" issue such as the effective date assigned for this grant is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VAs General Counsel also has held that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier effective date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement is not resolved. Additionally, since the RO issued an SOC in October 2008 and a Supplemental Statement of the Case in February 2010 addressing the downstream effective date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than September 26, 2006, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Huston v. Principi, 17 Vet. App. 195 (2003). Moreover, in January 2010 and May 2012, the Veteran was provided an opportunity to set forth his contentions during the hearings before the DRO and the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2010 and August 2010 hearings, the DRO and the undersigned Veterans Law Judge enumerated the issue on appeal. See DRO Hearing Transcript at 1; BVA Hearing Transcript at 2. The Veteran's contentions regarding his earlier effective date claim were addressed. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. No outstanding evidence has been identified. As such, the Board finds that, consistent with Bryant, the DRO and the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's available service treatment records, service personnel records, and all of the identified post-service records and thus complied with its duty to assist. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Legal Criteria for an Earlier Effective Date Generally, the effective date for the grant of service connection for disability compensation will be the day following separation from active service or the date entitlement arose, if the claim is received within 1 year after separation from service. Otherwise, the effective date will be the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. Evidence from a private physician or layman will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157(b)(2). Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). The Veteran was awarded service connection for diabetes mellitus in the January 2008 rating decision due to in-service exposure to herbicides during his service in the Republic of Vietnam. Thereafter, the RO assigned an effective date of September 26, 2006, based on liberalizing legislation under 38 C.F.R. § 3.114. With respect to the effective date for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Department of Veterans Affairs. See Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veteran Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer, et. al. v. Veterans Admin. of the Gov't of the U.S., 284 F.3d 1158 (9th cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease. 38 C.F.R. § 38 C.F.R. § 3.816(b)(1)(i). The term covered herbicide diseases includes type II diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i). This regulation applies to claims for disability compensation for the covered herbicide disease that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816(c). Diabetes mellitus, type II, was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of July 9, 2001. The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. See Liesegang v. Sec.'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). Accordingly, if the Veteran's claim was received between May 3, 1989, and May 8, 2001, the effective date must be the date of the claim. Otherwise, the effective date of the award will be determined in accordance with § 3.114, which addresses effective dates when service connection has been granted based on a liberalizing change in the law (i.e. the inclusion of type II diabetes mellitus as a disease formally associated with exposure to herbicide agents). Under 38 C.F.R. § 3.114, an effective date one year prior to the date of the Veteran's claim may be awarded when the evidence shows that the Veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue (May 8, 2001) and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a)(3). Factual Background The Veteran claims that he is entitled to an effective date earlier than September 26, 2006, for the grant of service connection for his diabetes mellitus. He asserts that July 29, 2004, is the appropriate effective date for his disability. Specifically, he claims that he submitted a claim for service connection for diabetes on July 29, 2004, at which time he submitted medical evidence showing that he had undergone diagnostic testing for the disorder. He also claims that on that date, he submitted evidence showing that he was prescribed diabetes medication. The earliest evidence of record includes documents dated in 1970's that are related to the Veteran's claim for education benefits. The claims file does not include evidence of any formal claims for compensation benefits dated prior to September 2007. Indeed, there is no indication that the Veteran had any contact with VA between 1979 and 2007. The Veteran filed a formal claim for service connection (VA Form 21-526) for diabetes mellitus on September 26, 2007. On his formal application, he indicated that he previously filed a claim for compensation and education benefits. In a September 2007 letter submitted along with his formal claim, the Veteran indicated that his diabetes mellitus was related to his exposure to herbicides during his service in the Republic of Vietnam. He submitted his DD 214 and medical evidence in support of his claim. The Veteran also stated that he previously submitted this medical evidence to the RO in July 2004. He stated that although the RO date stamped his medical records, the documents were returned to him along with a letter informing him that he had filed the wrong form. The Veteran asserted that the RO never provided him with the correct form with which to re-file his claim. In support of his contentions, the Veteran submitted a private laboratory report showing that he had undergone a blood glucose test in June 1998 and private pharmacy receipts showing that he was prescribed diabetes mellitus medication. These documents were date stamped as having been received by the RO in Roanoke, Virginia on July 29, 2004. The claim for service connection for diabetes mellitus due to herbicide exposure was granted by the RO in the January 2008 rating decision, effective from September 26, 2007, the date upon which the Veteran filed his formal claim for benefits. In his November 2008 Notice of Disagreement, the Veteran expressed his disagreement with effective date assigned for service connection for his diabetes mellitus. He reiterated his contention that he had submitted medical evidence related to his disability to the Roanoke RO on July 29, 2004. In an October 2008 Statement of the Case (SOC), the RO granted an earlier effective date of September 26, 2006, for the award of service connection for diabetes mellitus based on liberalizing legislation under 38 C.F.R. § 3.114. Essentially, the RO determined that the Veteran is a Vietnam Veteran and found that he met the criteria for service connection for diabetes mellitus on May 8, 2001. Thus, an effective date of September 26, 2006, was assigned, which was one year prior to the date of receipt of his claim for service connection on September 26, 2007. During the January 2011 formal RO hearing, the Veteran and his brother testified that July 29, 2004, was the appropriate effective date for the award of service connection for the Veteran's diabetes mellitus. The Veteran's brother essentially testified that he assisted the Veteran in July 2004 when he first filed a VA Form 21-526 claim for service connection and submitted his medical records in support of the claim. He described allegations made in the news regarding VA's mishandling of Veterans' documents at various ROs. He highlighted that the Veteran had submitted the date stamped medical records in support of his request for an earlier effective date and noted that the original submissions and VA Form 21-526 were not included in the claims file. He argued that the RO's receipt of the medical evidence on July 29, 2004, alone, raised an informal claim for service connection for diabetes mellitus. According to the Veteran's brother, the RO should have inferred that the Veteran sought service connection for diabetes mellitus based on these records, as they showed that he underwent testing and was prescribed diabetes medication. The argument was made that VA, at the very least, should have contacted the Veteran and requested further clarification of what benefits he sought and/or provided him with the proper forms to file a claim for service connection. The Veteran also testified as to his contention that he initially filed a claim for service connection and submitted his medical records in July 2004. He stated that his medical records were dated stamped and returned to him, along with a letter from the RO informing him that he submitted the wrong application. However, he reported that he no longer had this letter from the RO. The Veteran testified that the RO did not include a new application along with the correspondence and made no additional attempts to contact him with respect to his claim. During the May 2012 video conference hearing, the Veteran and his brother reiterated their contentions previously presented in support of the Veteran's claim. The Veteran essentially testified that in July 2004, he submitted a formal application for service connection for diabetes mellitus, along with his DD 214 and medical records showing that he was prescribed medication to treat the claimed disability. According to the Veteran, the RO then sent him a letter indicating that he had submitted the wrong form and returned the medical documents to him. He stated that the RO provided him with an application for a home loan but never provided him with a proper application for file a claim for service connection. He did not recall whether the RO provided him with a VA Form 21-526. See BVA Hearing Transcript at 3-8. Analysis Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for an earlier effective for the award of service connection for diabetes mellitus. The evidence of record reflects that the Veteran's claim for service connection was not received by VA until September 26, 2007, the date upon which he filed a formal claim for compensation benefits. Although the Veteran's claim was not received until September 26, 2007, the RO assigned an effective date of September 26, 2006. As referenced above, VA issued regulations creating a presumption of service connection for diabetes mellitus, type II, effective May 8, 2001. 66 Fed. Reg. 23,166. Because the Veteran did not file his claim on or before May 8, 2001, the Nehmer holding is inapplicable to the instant case. The effective date cannot be earlier than the effective date of the liberalizing law, May 8, 2001, and cannot be retroactive for more than one year from the date of application. 38 U.S.C.A. § 5110(g); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd by 106 F.3d 1577 (Fed. Cir. 1997); 38 C.F.R. § 3.114. Under this regulation, the effective date for service connection can be no earlier than the one year prior to the date that the Veteran filed his claim in September 2007. In this case, the RO assigned the earliest date possible by assigning the effective date of September 26, 2006. The Veteran and his brother have consistently reported that the Veteran initially filed a claim for service connection for diabetes mellitus on July 29, 2004, and that his VA benefits for this disability should be assigned from this date. The Veteran and his brother are competent to report that he filed a claim at that time, as this issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, under normal VA procedure, any claim received would have been associated with the claims file, and no such claim is of record. Further, the Veteran has not submitted any contemporaneous evidence to corroborate his reported attempt to file a claim at an earlier date, such as a certified mail receipt or delivery confirmation, or even a signed and dated copy of the earlier claim. Although he has provided evidence showing that he submitted his medical records to the RO in July 2004, as discussed below, this submission of evidence does not constitute a formal or informal claim for benefits. Moreover, there is no evidence that the Veteran actually submitted a formal or informal claim along with his medical records. Under the presumption of regularity, public officers (including VA employees) are presumed to have properly discharged their official duties, in the absence of clear evidence to the contrary. Johnson v. Shinseki, 23 Vet. App. 344, 348 (Vet. App. 2010); Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). This burden has simply not been met in this case. As such, the Board finds that the Veteran's claim was first received on September 26, 2007. The Board acknowledges that the Veteran submitted private medical records to the RO on July 29, 2004, that showed that he was assessed and treated for diabetes mellitus. Thus, there was medical evidence of record of the claimed disorder prior to September 26, 2006. However, the mere presence of medical evidence in the record does not constitute a claim for service connection, as it does not establish an intent to seek service connection for the disorder in question. See 38 C.F.R. § 3.155(a); Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as an informal claim). While information contained in treatment records may constitute an informal claim, this is only appropriate where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. See 38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). Here, while the claims file contains private medical records that were received by the RO in July 2004, these documents do not show any reference to a desire for service connection for diabetes mellitus. The mere submission of these documents cannot constitute either a formal or informal claim for service connection, and the Veteran's argument fails in this regard. Essentially, the evidence of record does not include any correspondence from the Veteran, dated prior to September 26, 2007, that could be interpreted as a claim for service connection for diabetes. The Board acknowledges the Veteran's contentions that VA failed its duty to assist by providing him with the appropriate form with which to file his claim or contact him to seek clarification of his intent to request compensation benefits. While VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). To the extent practicable, VA does make every effort to identify and notify claimants of the potential entitlement to benefits. However, in this case, the claims file contains no evidence of any communication from the Veteran prior to September 26, 2007, that put VA on notice of his potential entitlement to service connection for diabetes mellitus. The Board finds it significant that although the Veteran claims that the RO notified him of his failure to submit the correct form in July 2004, he made no attempts following this notice to submit any applications whatsoever or contact VA until September 2007. There is simply no record of any type of communication from the Veteran or the RO in 2004. Indeed, had he intended to file a claim for service connection, received notice that his application was defective because the wrong form was filed, and then not received the proper form for filing his application, the natural inclination would be to solicit that form or at least contact the RO to gain further information. Such was not done, and the Veteran has provided no explanation for his failure to do so. Essentially, there is no basis to grant an effective date earlier than what has already been assigned for the Veteran's diabetes mellitus disability. In light of the Veteran's argument that VA failed in its duty to assist, the Board has also considered the provisions of 38 U.S.C.A. § 6303 (formerly 38 U.S.C.A. § 7722), which require VA to distribute information to eligible Veterans regarding all benefits and services to which they may be entitled. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), however, has made clear that VA's failure to fulfill its duty to assist does not toll the statutory time period set forth in 38 U.S.C.A. § 5110. Rodriguez v. West, 189 F.3d 1351, 1355 (Fed. Cir. 1999) (holding that "nothing in [section 7722(d)] indicates, or even suggests, that the Secretary's failure to provide assistance to a claimant justifies ignoring the unequivocal command in 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefor"); see also, Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003) (holding that VA's failure to provide notice as required by section 7722 "may not serve as the basis for awarding an effective date in contravention of the [applicable] statute," section 5110(b)(1)). The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Under the circumstances in this case, the appropriate effective date for the award of service connection for diabetes mellitus is September 26, 2006, the earliest date allowable for service connection based on the facts of this case and VA regulations. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.114. As there is no legal basis for assignment of any earlier effective date, the claim for an earlier effective date for the award of service connection in this case must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than September 26, 2006, for the award of service connection for diabetes mellitus is denied. REMAND Unfortunately, a remand is required with respect to the Veteran's remaining claims. 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 claims so that he is afforded every possible consideration. The Veteran claims that his currently diagnosed hypertension disorder is related to his service-connected diabetes mellitus. He reports that he was diagnosed with both disorders contemporaneously following his discharge from active duty service. He essentially contends that his diabetes disability either caused or aggravated his hypertension. Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). Secondary entitlement is also available when a service-connected condition has chronically- meaning permanently- aggravated the disability in question, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Having reviewed the medical evidence of record, the Board finds that the Veteran must be afforded an additional VA examination and medical opinion to determine the etiology of his hypertension disorder. Here, a March 2008 VA heart examination assessed the Veteran's claimed disorder and confirmed his hypertension diagnosis. The VA examiner stated that she could not relate the Veteran's hypertension to his diabetes without resorting to speculation, as she was unable to make a direct connection between the disorders. It is noted that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the Court did find in Jones that simply concluding that the etiology of a disability could not be resolved without speculation, without providing any explanation why, was inadequate. Jones is applicable here since the VA examiner stated that an opinion could not be provided without resorting to mere speculation, but without providing any rationale for this inability to comment, as demanded by the Court. Moreover, she failed to address the possibility of chronic aggravation of the Veteran's hypertension by his diabetes mellitus (§ 3.303(b)). In light of these deficiencies, the March 2008 VA examination and opinion report of record are inadequate with which to decide the Veteran's hypertension claim. See Barr v. Nicholson, 21 Vet. App. 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the medical opinion of record is inadequate, the Veteran must be afforded a reexamination and a medical nexus opinion regarding whether his hypertension disorder is caused or chronically aggravated by his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Obtain any unassociated VA or private medical records that may exist or are otherwise identified by the Veteran. 2. After completing the foregoing development, schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and etiology of his hypertension. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. Following the completion of the clinical examination and review of the claims file, the examiner shall opine whether it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's hypertension is proximately due to, or aggravated by a service-connected disability, specifically his diabetes mellitus. If a service-connected disability aggravates (i.e., permanently worsens) his hypertension, the examiner shall identify the percentage of disability which is attributable to the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). In providing the requested opinions, the examiner must consider and reconcile any conflicting evidence or opinions with regards to the above. 3. Then readjudicate the matter on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further appellate consideration. 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. 2011). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs