Citation Nr: 1302904 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-16 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes or herbicide exposure. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran was previously represented by both the Vietnam Veterans of American and by a private attorney. In February 2012, the Veteran responded that he no longer wanted to be represented by either entity and wished to proceed pro se. In a March 2011 letter, the Veteran stated that his symptoms were getting worse, complaining specifically of symptoms related to his service-connected diabetes and posttraumatic stress disorder, as well as erectile dysfunction. Thus, the issues of entitlement to an increased rating for diabetes and PTSD and whether new and material evidence has been presented to reopen a claim for service connection for erectile dysfunction 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 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 appellant if further action is required. REMAND The Board has remanded this case twice before. In November 2010, the Board remanded the claim with instructions that the Veteran undergo a VA examination to determine the etiology of his hypertension. Though an opinion regarding the etiology of the Veteran's hypertension was provided, the opinion was based on a prior, December 2008 examination of the Veteran and not the result of a new VA examination. In April 2012, the Board again remanded the Veteran's claim with explicit instructions that the Veteran be examined, not that an opinion simply be provided. Despite this instruction, an opinion was obtained in June 2012, but no examination was provided. In light of this continuing failure to follow the Board's directives, this case must once again be remanded with instructions that the Veteran undergo a VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional, but not the examiner who performed the December 2008 VA examination and offered the November 2010 opinion or the examiner who offered the June 2012 opinion. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the 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. After examining the Veteran, the examiner is to: a) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is directly related to his active service, including his exposure to herbicides. b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is proximately due to or the result of his service-connected diabetes. c) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is aggravated by his service-connected diabetes. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the claims file to ensure that all of the foregoing development has been completed; in particular, that an examination was conducted, and arrange for any additional development indicated. 3. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant 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). _________________________________________________ RONALD W. SCHOLZ 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).