Citation Nr: 1308196 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-12 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from October 1965 to October 1967. He is the recipient of numerous awards and decorations, including the Bronze Star Medal, the Combat Infantryman Badge, and the Purple Heart Medal. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for hypertension, and upper and lower extremity peripheral neuropathy. The case was certified to the Board by the Pittsburgh, Pennsylvania RO. The appellant initiated an appeal of the RO's determination and in November 2008, he testified at a hearing before a Decision Review Officer at the RO. At the hearing, the appellant indicted that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for peripheral neuropathy of the lower extremities. Under these circumstances, that issue is no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204 (2012). Before the appeal was certified to the Board, in a March 2009 rating decision, the Pittsburgh RO granted entitlement to service connection for peripheral neuropathy of the bilateral upper extremities with carpal tunnel syndrome and assigned an initial zero percent disability rating, effective March 26, 2008. Because the record currently available to the Board contains no indication that the appellant disagreed with the initial rating or effective date assigned, those matters are not in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, the sole remaining issue on appeal is as set forth on the cover page. 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 appellant seeks entitlement to service connection for hypertension. He contends that his hypertension is secondary to his service-connected diabetes mellitus. The record on appeal indicates that the appellant was afforded a VA medical examination in May 2008 at which the examiner concluded that the appellant's hypertension was not caused by his diabetes as there was no evidence of end organ damage. The examiner, however, did not have access to the appellant's claims folder in providing the requested opinion. This has not escaped the attention of the appellant's representative, who has argued that this deficiency renders the examination inadequate. The Board further notes that the examiner did not address any other theory of entitlement, to include the question whether the appellant's service-connected diabetes mellitus aggravated his hypertension, or whether hypertension is causally related to or aggravated by his service-connected posttraumatic stress disorder (PTSD). See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (recognizing VA's duty to consider all issues raised either by the claimant or by the evidence of record). Given the available record, the Board finds that another VA medical examination is therefore necessary with respect to this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that a medical examination is necessary when the evidence indicates that a current disability may be associated with service or a service-connected disability, but is lacking in specificity to support a decision on the merits). The Board also notes that the appellant reports that he receives regular medical care for his disabilities, including hypertension, diabetes mellitus, and PTSD, at the Aspinwall (Heinz) VA Medical Center in Pittsburgh, Pennsylvania. The most recent records from that facility currently associated with the record on appeal, however, are dated in March 2009. On remand, therefore, the RO must ensure that the more recent records are secured and associated with the record. Finally, the appellant has repeatedly indicated that his treatment providers at the Aspinwall VA Medical Center have advised him that his hypertension was caused by his service-connected diabetes mellitus. As no written opinion to that effect is currently of record, the Veteran is advised that he should try to secure written opinions from any and all providers who are willing to address any causal relationship between hypertension and diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should secure records from the Aspinwall (Heinz) VA Medical Center in Pittsburgh, Pennsylvania, for the period since March 2009. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the appellant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The appellant must then be given an opportunity to respond. 2. Thereafter, the appellant should be scheduled for a VA medical examination to determine the nature and etiology of any diagnosed hypertension. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must opine whether it is at least as likely as not that the appellant's hypertension is causally related to his active service or any incident therein. If not, the examiner must opine whether it is at least as likely as not that hypertension is causally related to or aggravated by any service-connected disability, including diabetes mellitus and/or PTSD. If not, the examiner must explain why not. A complete rationale must be provided for any opinion offered. 3. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. After undertaking any additional development deemed necessary, the RO/AMC must readjudicate claim, considering all of the evidence of record. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. 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). _________________________________________________ DEREK R. BROWN 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).