Citation Nr: 1305033 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-36 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for hypertension. The Veteran filed a notice of disagreement (NOD) with this determination in November 2007, and timely perfected his appeal in November 2008. In a June 2008 rating decision, the RO denied the Veteran's claim of service connection for peripheral neuropathy. The Veteran filed a NOD with this determination in July 2008. Subsequently, in April 2009 and August 2009 rating decisions, the RO again denied the Veteran's claim of service connection for peripheral neuropathy. In July 2012, the Board remanded the issue of service connection for hypertension on appeal for further examination. Regrettably, as outlined below, an additional remand is necessary before appellate review may proceed on this matter. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on 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 A review of the record discloses further development is needed with respect to the Veteran's claims of service connection for hypertension and peripheral neuropathy. The Veteran was afforded a VA examination in August 2012. After examining the Veteran, the VA examiner noted a diagnosis of hypertension. The examiner concluded that the Veteran's diagnosis of hypertension was not caused by or the result of his military service, and is less likely related to Agent Orange exposure. The examiner further noted that hypertension was not included on the list of presumptive medical disabilities due to Agent Orange exposure. The Board concludes that this VA opinion is of little probative value because the examiner failed to provide a clear direct service connection opinion and supporting rationale as to the Veteran's hypertension, and its possible relation to herbicide exposure. See Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definitive statement as to etiology); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Additionally, the examiner's opinion that hypertension was not included on the list of presumptive medical disabilities due to Agent Orange exposure, does not preclude the Veteran from obtaining service connection due to Agent Orange exposure. Specifically, the unavailability of presumptive service connection for a disability based on exposure to herbicides does not preclude establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the July 2012 Board remand directives asked the examiner to specifically comment on the Veteran's contentions that recent unspecified studies from the Institute of Medicine have linked hypertension with exposure to herbicides. However, the examiner failed to discuss these studies while rendering an etiology opinion as to the Veteran's hypertension. See Stegall v. West, 11 Vet. App. 268 (1998). Without further clarification, the Board is without medical expertise to determine the etiology of the Veteran's hypertension, to include Agent Orange exposure. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, another VA opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that a remand is also necessary to obtain any outstanding VA treatment records. The record reflects that the Veteran was receiving periodic treatment for his hypertension. Though the VA claims file contains VA treatment records through October 2009, it is unclear whether the Veteran continued to seek treatment for his hypertension after that time. As these VA treatment records may contain information pertinent to his claim, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, a review of the record reflects that the Veteran filed a timely July 2008 NOD with respect to the RO's June 2008 rating decision denying his claim of service connection for peripheral neuropathy. Specifically, the Veteran stated that he disagreed with the VA's decision of June 2008, and noted the medical evidence in his favor. Subsequently, the Veteran continued to claim that his peripheral neuropathy was secondary to his service-connected diabetes mellitus. In the April 2009 and August 2009 rating decisions, the RO continued to deny the Veteran's claim of service connection for peripheral neuropathy. However, no subsequent action was taken to the Veteran's initial July 2008 NOD of the RO's June 2008 rating decision, such as supplying the Veteran with a Statement of the Case (SOC), in reference to his claim of service connection for peripheral neuropathy. Where a notice of disagreement has been timely filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board finds that a remand is necessary for the issuance of a statement of the case for the issue of service connection for peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any available outstanding VA treatment records dated from October 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) The AMC should issue the appellant a SOC pertaining to the issue of entitlement to service connection for peripheral neuropathy of the upper and lower extremities, as secondary to the service-connected diabetes mellitus. 3) Additionally, a VA opinion should be obtained to determine whether service-connection is warranted for the Veteran's diagnosis of hypertension, to include as secondary to Agent Orange exposure. The claims file and a copy of this remand must be made available to and reviewed by the reviewer. The reviewer should provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset during active service or is related to any in-service disease, event, or injury, to include herbicide exposure in Vietnam. In rendering this opinion, the reviewer should acknowledge the medical evidence of record, such as service treatment records, VA outpatient treatment records, private treatment records, the August 2012 VA examination report, the Veteran's lay statements, and any other relevant information. Specifically, the reviewer should also consider and discuss the Institute of Medicine studies (copy in the claims file) that have linked hypertension with exposure to herbicides. The reviewer must provide a comprehensive report including complete rationale for each opinion and conclusion reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ DEBORAH W. SINGLETON 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).