Citation Nr: 1306041 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-26 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from April 1959 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The case was previously before the May 2010; at that time the Board found that new and material evidence had been submitted to reopen the claim for service connection for hypertension. The Board then remanded the case to provide additional notice, and for examination of the Veteran and medical opinions. Additional development is necessary. The Veteran's claim is for service connection for hypertension. He has asserted this claim under multiple theories of entitlement including: on a direct basis; secondary to his service-connected diabetes mellitus; and most recently on the basis of Agent Orange exposure. The Board has recharacterized this issue most broadly to account for the different theories of entitlement asserted by the Veteran. In February 2010, the Veteran testified at a hearing before a Veterans Law Judge who is no longer a member of the Board. A transcript of this testimony is associated with the claims file. He has been provided the opportunity to request an additional hearing before a sitting Veterans Law Judge; he has not requested an additional hearing. 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 VA has statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). In the May 2010 Remand, the Board ordered that the Veteran be provided additional notice with respect to his claim for service connection for hypertension. In November 2010, the RO provided a letter which was inadequate. This letter misidentified the issue on appeal as being new and material evidence to reopen, when the Board had reopened the claim in May 2010. This letter incorrectly informed the Veteran that the issue under consideration was "service connection for your diabetes mellitus II as secondary to you service-connected hypertension condition," which is the opposite of the issue that required consideration. In short, the November 2010 letter from the RO to the Veteran was not adequate in providing the necessary notice as ordered in the May 2010 remand. Additional notice must be provided. A remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's primary claim is that he warrants service connection for hypertension secondary to his service-connected diabetes mellitus. Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). The February 2011 VA examination report did not provide a medical opinion with respect to whether the service-connected diabetes mellitus aggravates the claimed hypertension. Id. Remand for an addendum to the medical opinion is required. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran proper VCAA notice, in terms of 38 U.S.C.A. §§ 5103 and 5103A, with respect to his claim for entitlement to service connection for hypertension. Include the necessary notice with respect to the claim for service connection (1) on a direct basis; (2) secondary to his service-connected diabetes mellitus; and (3) on the basis of Agent Orange exposure. 2. Return the claims file to the examiner who conducted the February 2011 Compensation and Pension examination. If this examiner is not available, the file can be forwarded to another appropriate examiner. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed, along with the February 2011 examination report. Based on the examination and review of the record, the examiner is requested to answer whether it is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's service-connected diabetes mellitus, including any medication prescribed to treat this disability, has aggravated the Veteran's claimed hypertension? The examiner is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the hypertension (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. If it is determined that the requested medical opinion cannot be rendered without additional physical examination of the Veteran, then the appropriate examination(s) should be ordered. 3. Readjudicate the Veteran's claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. Consider his claim for service connection on a direct basis, secondary to service-connected diabetes mellitus and as a result of Agent Orange exposure. If the decision with respect to the claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).