Citation Nr: 1301615 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-03 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2010 and February 2012, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development and to ensure that the Veteran was afforded due process. In a March 2011 rating decision, the RO granted service connection for PTSD with depression, not otherwise specified, and assigned a 50 percent evaluation, effective on March 10, 2005. The action constituted a full grant of the benefits sought, and the claim of service connection for PTSD is no longer pending appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In May 2012, the Veteran testified before the undersigned Acting Veterans Law Judge sitting in Washington, DC, via a videoconference hearing. The hearing transcript is not associated with the record. In a June 2012 letter, the Board notified the Veteran that the hearing transcript was unavailable and offered to provide another hearing. In a response received by VA in July 2012, the Veteran indicated that he did not wish to appear at another hearing. His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 contends that his hypertension and diabetes mellitus were caused or aggravated by his service-connected PTSD. Secondary service connection may be established for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006, 2012). Secondary service connection may also be established for any increase in severity of the nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b) (2012). The Board notes that on October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen v. Brown, 7 Vet. App. 439 (1995) except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim as the appellant's claim (February 2006) predates the enactment of the amendment. The medical evidence shows that the Veteran has diagnoses of hypertension and diabetes mellitus, and as noted above, he is service-connected for PTSD. However, the medical evidence of record is not sufficient to render a determination in this case. In this respect, the Veteran has not been afforded a VA examination in connection with his claims for service connection for hypertension and diabetes mellitus. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or a service-connected disability, and the record does not contain sufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded a VA examination to determine the nature and etiology of the hypertension and diabetes mellitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. A notation to the effect that this record review took place should be included in the report. The examiner should comment as to whether it is at least as likely as not (50 percent probability or more) that the Veteran currently has hypertension and/or diabetes mellitus that is causally or etiologically related to his military service, including his symptomatology therein. If the Veteran's hypertension and/or diabetes mellitus is not related to his military service or the symptomatology therein, the examiner should state whether it is at least as likely as not (50 percent probability or more) that the disorders were either caused by or permanently aggravated by his service-connected PTSD. The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 3. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310 in effect prior to October 2006. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ M. MAC 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) (2012).