Citation Nr: 1300495 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-02 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension, to include as secondary to Agent Orange exposure and/or service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active military duty from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago Illinois, which, in part, denied service connection for hypertension, to include as due to service-connected diabetes mellitus. The Veteran timely appealed the RO's July 2007 rating action to the Board. In April 2011, the Veteran testified before the undersigned Veterans Law Judge concerning the issue on appeal. A copy of the hearing transcript has been associated with the claims files. In an October 2011 decision, the Board, denied service connection for hypertension, to include as secondary to Agent Orange exposure and service-connected diabetes mellitus. The Veteran appealed the Board's decision as to this issue to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court granted a June 2012 Joint Motion for Remand and remanded the matter for proceedings consistent with the Motion which included vacating the October 2011 Board decision denying service connection for hypertension. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. As previously noted in the October 2011 Board decision, the issues of entitlement to service connection for amyloidosis, to include as due to Agent Orange exposure; entitlement to an increased disability rating in excess of 60 percent for diabetic nephropathy or chronic renal failure; entitlement to an increased disability rating in excess of 10 percent for mild peripheral neuropathy of the left upper extremity; entitlement to an increased rating in excess of 10 percent for mild peripheral neuropathy of the right upper extremity; entitlement to an increased rating in excess of 10 percent for mild peripheral neuropathy of the right lower extremity; entitlement to an increased disability rating in excess of 10 percent for mild peripheral neuropathy of the left lower extremity; entitlement to an increased compensable disability rating for erectile dysfunction; entitlement to an increased disability rating in excess of 20 percent for low back strain; and, entitlement to an increased disability rating in excess of 40 percent for diabetes mellitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are once again REFERRED to the AOJ for appropriate action. 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 In its Joint Motion for Remand, the parties indicated that the Board failed to adequately discuss the evidence of record, specifically a June 2007 medical examination. The Veteran was provided a VA examination in June 2007, the report of which reflects that the VA examiner concluded that because the Veteran's diabetes mellitus and hypertension were diagnosed at the same time and there was no evidence of renal disease, that his hypertension was not due to nor had it been worsened by his diabetes mellitus. A review of the record discloses that the Veteran's hypertension, initially diagnosed in the late 1980's, pre-dated (italics added for emphasis) his development of diabetes mellitus in July 1998. See February 2004 report, prepared by S. M., M.D. and August 2004 VA Spine examination report, reflecting that the Veteran had developed diabetes mellitus in 1998. Accordingly, the objective clinical evidence of record clearly and unequivocally shows that the Veteran developed diabetes mellitus after (italics added for emphasis) he developed hypertension in the 1980's. Additionally, since the June 2007 examination report was rendered, the Veteran was provided another VA examination in August 2009. The August 2009 VA examiner noted a diagnosis of diabetic nephropathy caused by the Veteran's diabetes mellitus. Therefore, the June 2007 VA examination report is inadequate insofar as the examiner mischaracterized the Veteran's disability and is based on an incorrect premise (e.g. onset of diabetes mellitus and hypertension, and the existence of renal disease). The record also includes a letter received in May 2011 from a VA nurse practitioner indicating that the Veteran developed hypertension due to his diabetes and diabetic nephropathy, and that it was more likely than not that hypertension was a result of service-connected diabetes. The Board finds this opinion is insufficient as the nurse practitioner offers no reasoning or basis for her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of his current hypertension, taking into consideration all of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (finding that once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In addition, any ongoing VA treatment records should be obtained and associated with the Veteran's claims folder/electronic record. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All efforts to obtain additional evidence must be documented in the claims folder. Requests must continue until it is determined that the records sought do not exist or that further efforts to obtain these records would be futile. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of his current hypertension. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that hypertension was caused or aggravated by the Veteran's service-connected type diabetes mellitus or other service-connected disorders. If the examiner determines that the Veteran's hypertension is aggravated (i.e., permanently worsened) by the diabetes mellitus (or any other service-connected disorder) the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner should also provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that hypertension is related to service, to include exposure to Agent Orange therein. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. The examiner must specifically address the May 2011 letter from the VA nurse practitioner. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Then readjudicate the appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).