Citation Nr: 1314100	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  07-11 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for hypertension, secondary to diabetes mellitus.  

2.  Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran served on active duty from April 1967 to January 1970. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  In that decision, the RO, inter alia, denied a claim for service connection for hypertension as well as a claim for a TDIU. 

In April 2008 the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge of the Board.  Because additional evidence came to light during that hearing, in October 2009 the Board remanded both issues to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary consideration.  

In June 2011, the Board denied the Veteran's claim of service connection for hypertension and remanded the claim of entitlement to TDIU.  The Veteran timely appealed to the Court of Appeals for Veterans Claims (Veterans Court).  In May 2012, pursuant to a Joint Motion for Partial Remand ("Joint Motion"), the Veterans Court remanded the part of the Board's June 2011 decision that denied entitlement to service connection for hypertension.  Significantly, in the Joint Motion the Veteran advised he was abandoning the claim for service connection for hypertension on a direct basis.  As such, the only issue for consideration regarding hypertension is whether it is secondary to (i.e, caused or aggravated by) diabetes mellitus.

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 Veteran, whose hypertension apparently predated his diabetes, now contends that his hypertension has been aggravated by the service-connected diabetes mellitus.  The Joint Motion observed no VA examiner addressed that aggravation theory of entitlement.  This should be accomplished.  

With respect to the TDIU claim, the development the Board had requested in its June 2011 Remand of that issue has been accomplished.  The Veteran was examined and opinions obtained on whether his service connected disabilities precluded his substantially gainful employment.  However, that was accomplished with the understanding that hypertension was not a service connected disability.  As that service connection question remains open, a decision regarding entitlement to TDIU benefits would be premature at this point.  

Accordingly, the case is REMANDED for the following actions:

1.  The file should be provided to a person with appropriate expertise for an opinion as to whether it is at least as likely as not that the Veteran's hypertension was aggravated (permanently increased in severity) by the Veteran's diabetes mellitus.  If it is necessary to examine the Veteran to obtain this opinion, that should be arranged.  

The rationale for the opinion expressed should be provided, with appropriate reference to the facts and science applicable to this case. 

2.  Thereafter, readjudicate the Veteran's claims of entitlement to service connection for hypertension, and after any further development as may become indicated, the claim for TDIU benefits.  If any benefits sought on appeal are not granted in full, send the Veteran and his representative a Supplemental Statement of the Case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate review.

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).



_________________________________________________
MICHAEL E. KILCOYNE
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).