Citation Nr: 1311034 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-28 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from April 1968 to May 1971. This appeal initially came to the Board of Veterans' Appeals (Board) from a December 2007 rating decision. In December 2010, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a memorandum decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before the undersigned judge at a July 2010 hearing held at the RO. The transcript has been obtained and is associated with the file. In the December 2010 Board decision, the Board referred the issue of service connection for erectile dysfunction, secondary to diabetes, for appropriate action. It is unclear whether this action has been completed and the issue is therefore REFERRED once again to the RO for proper action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran alleges that his diagnosed hypertension was either caused or aggravated by his service-connected diabetes. In December 2010, the Board denied the Veteran's claim, relying in large part on a February 2008 VA examination. The VA examiner ultimately opined that she would have to resort to mere speculation to determine if the Veteran's service-connected diabetes proximately caused or aggravated his hypertension, stating that there was no objective evidence for review to confirm the onset date of hypertension as in relation to the onset of diabetes. The memorandum decision cited to the proposition that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence; and that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." See Jones v. Shinseki, 23 Vet. App. 382 (2010). The memorandum decision noted that the Board's suggestion that the medical evidence showed the Veteran was diagnosed with diabetes in May 2000 and with hypertension in January 2001; and urged that a new opinion be provided to address this finding. At his Board hearing, the Veteran's representative stated that he was diagnosed with both diabetes mellitus and hypertension in early 2000. It was also discussed at the hearing that the Veteran had been treated by VA since 1991. A VA treatment note dated in February 2001 states diabetes mellitus had been diagnosed 8 months earlier, and a problem list shows an entry of a diagnosis of diabetes in May 2000. The first VA record in the file is dated in October 2000 and shows follow-up for both diabetes mellitus and hypertension, but there are no earlier medical records showing when either condition was first diagnosed. In a March 2013 statement, the Veteran's representative suggested that additional development should be undertaken to obtain VA treatment records from 1998-2000. The representative also suggested that the Veteran's weight should be addressed, noting that the Veteran lost 20 pounds between May 2000 and January 2001. In this regard, the Veteran reported in an October 2007 statement that he had been treated from 1991-1996 at the VAOPC in Ft. Meyers (with several trips to the Bay Pines VAMC during that time) and then had been treated at the Gainesville VAMC from 1996 to present. This treatment was discussed at the Veteran's hearing, as the undersigned judge was concerned that that all relevant and available records were obtained. In a July 2010 report of general information, it was noted that the availability of the Veteran's VA medical records at Ft. Myers and Gainesville VAMC prior to 2000 had been researched, but a review of Capri found no additional treatment records. As such, it does not appear that the Veteran's earlier treatment records are available. Nevertheless, given the renewed indication of relevant treatment records, the passage of time since the last records search, and the directives of the memorandum decision, the Board concludes that an additional effort should be undertaken to locate any additional treatment records for the Veteran that might be available. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records, covering treatment from 1991 to 2001. The Veteran has reported being treated from 1991-1996 at the VAOPC in Ft. Meyers (with several trips to the Bay Pines VAMC during that time) and then being treated at the Gainesville VAMC from 1996 to present. A search of retired or archived records must be done. If no records from prior to 2000 are obtained, an indication of such should be placed in the file, and the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's VA treatment records from Gainesville dated from 2009 to the present. 3. Once the above medical records have been obtained, or it is determined that additional efforts to obtain them are futile, then provide the Veteran's claims file to an appropriate examiner for a medical opinion. A complete rationale should be provided for any opinion expressed; and the examiner should address the relevance if any of the two studies relating hypertension and diabetes that were submitted by the Veteran. If the Board's questions cannot be answered without an examination, one should be scheduled. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension was either caused by or aggravated (worsened) by his diabetes mellitus. If additional treatment records are obtained, the examiner should review them for the onset of the Veteran's hypertension. If the examiner determines that the requested opinion(s) cannot be provided without resorting to speculation, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. 4. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).