Citation Nr: 1301900 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-20 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to January 1958 and from May 1960 to October 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing at the RO in Houston, Texas in September 2012. This transcript has been associated with the file. The Veteran appears to still be submitting evidence for a claim of entitlement to individual unemployability (TDIU). See February 2008 statement. Although this issue was adjudicated in a June 2007 rating decision, which the Veteran was notified of in August 2007, the issue is REFERRED to the RO for proper clarification and adjudication, if necessary. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 he has hypertension as secondary to his service-connected diabetes. The Veteran was afforded a VA examination in October 2010. At this examination the examiner provided an inadequate opinion. He originally stated it was at least as likely as not that the Veteran's hypertension was related to his diabetes, but then went on to discuss why the two were not related. The examiner also did not provide an adequate opinion with regard to secondary service connection. The examiner did not discuss the appropriate standard of whether the Veteran's hypertension was caused or aggravated by his diabetes. 38 C.F.R. § 3.310. The Court of Appeals for Veterans Claims has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). As such, the claim should be remanded for an addendum opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the October 2010 VA examiner review the entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should offer the following opinions: a) Whether it is at least as likely as not that the Veteran's hypertension is related to service, and b) Whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected diabetes. c) The examiner is also asked to clarify his October 2010 opinion and state whether it should have read that the Veteran's hypertension was "less likely than not related to his diabetes," to follow his rationale. It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale should be provided for all opinions. If the October 2010 VA examiner is not available to provide an additional report, make arrangements for the file to be reviewed by another examiner who should be requested to supply the requested addendum opinion. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination, and he should be notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above, and any other development deemed necessary, the Veteran's claim should be readjudicated. 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 a reasonable opportunity to respond before the record is returned to the Board for further 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. 2012). _________________________________________________ JOHN Z. JONES 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).