Citation Nr: 1309045 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-27 538A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea and/or bronchial asthma. 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected sleep apnea and/or bronchial asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1991 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2012; a transcript of that hearing is associated with the claims file. 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 In the September 2012 hearing, the Veteran averred that he took inhalants and oral prednisone in service for his asthma, and that subsequent to service, he took those medications to treat that disability until 2008, when he was diagnosed with both hypertension and diabetes. The Veteran indicated that his private physician, Dr. K.E., has indicated in discussions that long-term steroid use can cause hypertension and diabetes; he also stated that the restriction of activities, particularly exercise, due to his asthma has led to obesity and diabetes. The Veteran has additionally stated that he believes that his two claimed conditions are aggravated by his asthma, including the treatment regimen that is necessary to treat that disability. In January 2010 and June 2010 addendum opinions, the VA examiner specifically addressed the Veteran's contentions of causation and aggravation by his sleep apnea and to a lesser extent bronchial asthma, though not with respect to any medications that he is taking for those conditions. The examiner also appears to indicate that systemic treatment of steroids would potentially have an impact on his opinion, and the Veteran claims that he was taking prednisone for his asthmatic condition since service; the opinion does not address this matter. Thus, the Board finds that a remand is necessary in this case in order to obtain a new opinion which adequately addresses the Veteran's contentions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Moreover, the Veteran stated that he was receiving treatment from the Danville VA Medical Center, and had received treatment with a private physician, Dr. K.E., with Provena Health Care System. Currently, the Board notes that treatment records from Danville through October 2012 are of record; treatment records from Dr. K.E. and Provena from 2008 are of record. On remand, the Board finds that any ongoing private and VA treatment records should be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Danville VA Medical Center, or any other VA medical facility that may have treated the Veteran, since October 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his claimed hypertension and diabetes, which are not already of record, including any ongoing treatment from Dr. K.E. or Provena Health Care System since 2008. Treatment records reflecting prescriptions for steroids and inhalants for service-connected bronchial asthma and/or obstructive sleep apnea should be included. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Furnish the Veteran's claims file to the January 2010 VA examiner in order to provide an addendum to the January 2010/June 2010 VA examination report and addendum. The examiner should specifically state in his addendum that the entire claims file has been reviewed, including this REMAND order as well as his previous VA examination reports. After review of the claims file, including his previous examination reports, the VA examiner should opine whether the Veteran's hypertension and/or diabetes are more likely, less likely, or at least as likely as not (50 percent or greater probability) the result of military service. If not, the examiner should opine whether hypertension and/or diabetes are more likely, less likely or at least as likely as not caused or aggravated by the Veteran's sleep apnea, bronchial asthma, or the aggregated effects of those conditions, to include the Veteran's long-term prednisone and inhalant use as a treatment regimen for his asthma as well as his restriction of activities such as exercise due to his respiratory disabilities. If aggravated, specify the baseline of hypertension and/or diabetes prior to aggravation, and the permanent, measurable increase in hypertension and/or diabetes disability resulting from the aggravation. Reference should be made to the Veteran's claim of long-term steroid use and the clinical records reflecting actual prescriptions for service-connected disability. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the January 2010 VA examiner is unavailable to respond, a comparably qualified examiner can render an addendum which addresses the above. If the January 2010 VA examiner or any subsequent examiner cannot opine to the above without examination of the Veteran, he should be afforded an examination. 4. Following the above development, the originating agency should review the claims file and re-adjudicate the Veteran's claims of service connection for hypertension and diabetes mellitus, to include as secondary to sleep apnea and bronchial asthma. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. 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). 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). _________________________________________________ THOMAS J. DANNAHER 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).