Citation Nr: 1310484 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 06-00 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Barbara J. Cook, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970, including service in the Republic of Vietnam during the Vietnam era. This matter comes before the Board of Veterans' Appeals (Board) from February 2005 and November 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hypertension, renal insufficiency, bilateral hearing loss, and peripheral neuropathy of the upper and lower extremities. In an August 2007 decision, the Board denied service connection for hypertension and for a renal insufficiency. The Veteran appealed the August 2007 decision to the United States Court of Appeal for Veterans Claims. In an August 2008 Order, the Court remanded the claims to the Board for readjudication in accordance with the Joint Motion for Remand. In November 2008, the Board remanded the claims for additional development. In a March 2011 decision, the Board denied service connection for hypertension, renal insufficiency, and bilateral hearing loss, and remanded the claim for service connection for bilateral peripheral neuropathy of the upper and lower extremities. The Veteran appealed only the portions of the decision denying service connection for hypertension and renal insufficiency to the Court. In an August 2012 Memorandum Decision, the Court affirmed the Board's denial of service connection for renal insufficiency, and that issue is therefore no longer before the Board. The August 2012 Memorandum Decision remanded the Veteran's claim for service connection for hypertension and that claim is again before the Board. The appeal is REMANDED to the VA RO. REMAND With respect to the Veteran's claim for service connection for hypertension, the Court's August 2012 Memorandum Decision remanded that claim because it found that the Board's March 2011 decision failed to adequately explain why a medical opinion was not provided regarding the relationship between the Veteran's hypertension and his in-service exposure to herbicides. A Veteran who had active military service in Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If herbicide exposure occurred, the Veteran is entitled to a presumption of service connection for certain disorders. 39 C.F.R. § 3.309(e) (2012). The Board notes that hypertension is not among the disorders entitled to presumptive service connection. While ischemic heart disease is included among the list of presumptive disabilities, that term explicitly excludes hypertension. 39 C.F.R. § 3.309(e), Note 3 (2012). Therefore, despite serving in Vietnam during the Vietnam era, the Veteran's hypertension is not entitled to presumptive service connection. Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724 (1984); McCartt v. West, 12 Vet. App. 164 (1999). Accordingly, despite the unavailability of presumptive service connection to the Veteran in this case, the Veteran may establish service connection on a direct basis as a result of exposure to herbicides in-service. In an effort to assist the Veteran in the development of his claim for service connection on a direct basis, and pursuant to the findings of the August 2012 Memorandum Decision, an examination should be performed addressing the nature and etiology of the Veteran's hypertension, including the likelihood whether the hypertension is related to active service. Following the Court's August 2012 Memorandum Decision, the Veteran's representative submitted evidence regarding the possible relationship between hypertension and herbicide exposure. The examiner should consider that evidence in the analysis of the etiology of the Veteran's hypertension. With respect to the Veteran's claim for service connection for peripheral neuropathy, the Board remanded the Veteran's claim for further development in March 2011. The RO is required to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect. 38 C.F.R. § 19.31(c) (2012). The only exceptions allowed for by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior statement of the case or supplemental statement of the case, or (2) the Board specifies in the remand that a supplemental statement of the case is not required. 38 C.F.R. § 19.31(c) (2012). The Board's March 2011 remand falls under neither exception. The Board remanded for reasons in addition to those outlined in the first exception. The second remand directive of the Board's March 2011 remand requested that if the decision remained adverse to the Veteran a supplemental statement of the case was to be issued. The Veteran was afforded with an examination of his peripheral neuropathy in April 2011, but no further adjudication of the Veteran's claim appears to have taken place after the time of that examination. Therefore, a supplemental statement of the case should be issued as to the issue of service connection for peripheral neuropathy. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a medical doctor of appropriate expertise to address the etiology of a hypertension. The examiner must review the claims file and must note that review in the report. The rationale for all opinions must be provided. It should be assumed that the Veteran currently has hypertension. The examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to the Veteran's service, including the Veteran's exposure to herbicides in service. The examiner should assume that the Veteran was exposed to herbicides in service. The doctor should discuss the treatise evidence of record, including the Institute of Medicine Report on Agent Orange submitted by the Veteran's representative in February 2013. 2. Then, readjudicate the issues on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters that 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).