Citation Nr: 1301030 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 07-12 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension claimed as the result of herbicide exposure. 2. Entitlement to an increased disability evaluation for the Veteran's Type II diabetes mellitus with diabetic retinopathy, currently evaluated as 20 percent disabling. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service from November 1967 to October 1969. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for hypertension and denied the claim on the merits; denied service connection for both high cholesterol and bilateral lower extremity peripheral neuropathy; and denied an increased disability evaluation for the Veteran's Type II diabetes mellitus. In February 2007, the RO recharacterized the Veteran's diabetes mellitus as Type II diabetes mellitus with diabetic retinopathy evaluated as 20 percent disabling. In July 2010, the Board determined that new and material evidence had been received to reopen the Veteran's claim for entitlement to service connection for hypertension, denied service connection for high cholesterol; and remanded the issues of service connection for hypertension and bilateral lower extremity peripheral neuropathy and an increase evaluation for the Veteran's Type II diabetes mellitus with diabetic retinopathy to the RO for additional action. In July 2011, the RO granted service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy; assigned 10 percent evaluation for those disabilities; and effectuated the awards as of September 28, 2004. The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND Unfortunately, another remand is required in this case. 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In February 2011, the Veteran was afforded a VA examination for compensation purposes in order ascertain the nature and etiology of his hypertension in accordance with the Board's July 2010 remand instructions. The examiner concluded that "[diabetes mellitus] does not cause [hypertension]" and there was "no evidence of aggravation." The doctor responded "no" to the question of whether the Veteran's essential hypertension was "a condition that is worsened or increased by the Veteran's diabetes mellitus." The examiner provided no rationale for her conclusions. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive). Therefore, the Board finds that an additional evaluation is required to accurately to determine the nature and etiology of the Veteran's hypertension. Clinical documentation dated after February 2011 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). A September 2004 written statement from the Veteran advanced that his service-connected Type II diabetes mellitus severely impacted his ability to work as a life insurance agent and was leading to his early retirement. In his October 2012 Appellant's Post-Remand Brief, the accredited representative asserts that the Veteran's diabetes mellitus is productive of total occupational impairment. The Veteran's statement may be reasonably construed as a claim for a TDIU. That issue has not been adjudicated. The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his hypertension and service-connected Type II diabetes mellitus and diabetic retinopathy after February 2011. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation, not already of record, for incorporation into the record. If such records are not ultimately obtained, the Veteran must be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record all relevant VA clinical documentation not currently of record including that provided after February 2011. 3. Then schedule the Veteran for a VA examination to address the current nature and etiology of his hypertension. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that the Veteran's chronic hypertension had its onset during active service; otherwise originated during active service; or is etiologically related to or increased in severity beyond its natural progression as the result of the Veteran's Type II diabetes mellitus and other service-connected disabilities. All relevant medical records, including the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 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. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this remand. The report should be returned to the examiner if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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). These claims 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. 2012). _________________________________________________ J. T. HUTCHESON 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 Court. 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).