Citation Nr: 1302138 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-28 004 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability (diabetes mellitus, type II). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the RO. In April 2010 the Veteran and his spouse testified during a Board hearing before a retired Veterans Law Judge at the RO; a transcript of that hearing is of record. In September 2010, the Board denied the Veteran's claims for service connection for hypertension and a kidney disorder; the claim for service connection for erectile dysfunction was remanded for further development of the record. Specifically, the Board directed the RO to schedule the Veteran for a more contemporaneous VA examination to evaluate the etiology of the claimed erectile dysfunction. The Veteran appealed the portion of Board's decision that denied his claims for service connection for hypertension and a kidney disorder to the United States Court of Appeals for Veterans Claim (Court). In February 2012, the Court issued a single judge Memorandum Decision, vacating the Board's decision and remanding those claims to the Board for further proceedings consistent with the Memorandum Decision. Additionally, the Board notes that the Veterans Law Judge who conducted the April 2010 hearing is no longer employed at the Board. The law requires that the Veterans Law Judge that conducted the Board hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011). Thus, the Veteran was given the opportunity to request another Board hearing. In June 2012, the Veteran indicated that he did not wish to appear at another hearing and requested that his appeal be considered based on the evidence of record. Finally, the Board notes that the Veteran was previously represented by the American Legion. However, in December 2011, he granted a power-of-attorney in favor of Disabled American Veterans. Disabled American Veterans has submitted written argument on his behalf. The Board recognizes the change in representation. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the Memorandum Decision, the Court concluded that the Board failed to give adequate reasons and bases to support its September 2010 decision to deny the Veteran's claims of entitlement to service connection for hypertension and a kidney disorder. Specifically, with respect to the claim for service connection for hypertension, the Court determined that the Board relied on an inadequate VA examination in concluding that service connection for hypertension was not warranted. To that end, in the February 2007 report of VA examination, the examiner opined, without explanation or rationale, that the Veteran's hypertension was not caused by, a result of or aggravated by his diabetes mellitus. The Court determined that the Board's reliance on this inadequate examination was error. See Stefl v. Nicholson, 21 VetApp. 12 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). With respect to the claim for service connection for a kidney disorder, the Court determined that the Board relied on an inadequate VA examination in concluding that service connection for a kidney disorder was not warranted. To that end, in the February 2007 report of VA examination, the examiner offered no reasoned medical explanation for the opinion that the Veteran's kidney disorder was not caused by, a result of or aggravated by his diabetes mellitus. In this regard, the Court noted that the Veteran's service treatment records documented blood in his urine in June 1966. The Veteran submitted medical treatise evidence indicating that blood in urine can be caused by kidney disease. Given this evidence, without further explanation, the February 2007 VA examiner's opinion was simply unsupported. Thus, the Court determined that the Board's reliance on this inadequate examination was error. See Nieves-Rodriguez v. Peake, 22 Vet. App. at, 301 (2008). In that vein, the Court also determined that Board committed error by making an unsubstantiated medical conclusion. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991). In this regard, while noting the Veteran had diagnosed epididymitis (painful right teste) and complained of blood in his urine, the Board stated that there was "no indication that the Veteran experienced symptoms in service which could be directly related to his current chronic kidney disease." The Court concluded that an independent medical basis was necessary to support this statement. Finally, with respect to the claim for service connection for erectile dysfunction, the Board notes that pursuant to the September 2010 remand directives, the Veteran was afforded a VA examination addressing the etiology of his claimed erectile dysfunction. In the report of May 2011 VA examination, the examiner opined that it was less likely that the Veteran's erectile dysfunction was due to his diabetes mellitus. However, the examiner noted that the Veteran's long-standing history of hypertension could also be a contributing factor to his erectile dysfunction. Given the development to be undertaken regarding the Veteran's claim for service connection for hypertension, the Board finds that a decision on the Veteran's claim for erectile dysfunction would be premature at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers, to specifically include the McIver Clinic, who have treated the Veteran for his claimed hypertension, kidney and erectile dysfunction disorders. After the Veteran has signed the appropriate releases, all identified records of treatment, to specifically include records of treatment from the McIver Clinic should be obtained and associated with the claims folder. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After all records/responses received from each contacted entity are associated with the claims file, the AOJ should arrange for the Veteran to undergo VA genitourinary and hypertension disorders examinations, by a physician. The purpose of the examinations is to assess the etiology of the Veteran's hypertension and kidney disorder. The entire claims file must be made available to the individual designated to examine the Veteran. All appropriate tests and studies should be accomplished with all results made available to the requesting individual. Following the examination, the physician is requested to provide an opinion as the following questions: (a) Is it at least as likely as not (50 percent chance or better) that the claimed hypertension or kidney disorder had its onset as a result of events or injury during the Veteran's period of service? (b) Is it at least as likely as not (50 percent chance or better) that the claimed hypertension or kidney disorder is related to the service-connected diabetes mellitus, type II? (c) If not, then is the hypertension or kidney disorder aggravated (i.e., worsened beyond its natural progression) by the Veteran's service-connected diabetes mellitus, type II? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. A complete rationale must be given for all opinions and conclusions expressed in a report. The physician should include specific discussion of the service treatment records documenting blood in the Veteran's urine, the medical treatise evidence indicating that blood in urine can be caused by a kidney disorder and relevant private treatment records supporting the Veteran's claims (most notably the October 2012 opinion of the Veteran's treating physician). 4. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 5. After completing all indicated development, the AOJ should readjudicate the claims for service connection for hypertension, a kidney disorder and erectile dysfunction in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ H. N. SCHWARTZ 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) (2011).