Citation Nr: 1315794 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-04 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected disorder. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969, and from May 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2010, the Board remanded this matter for additional development and medical inquiry. The Board notes that it has reviewed the evidence of record to include the Veteran's virtual VA claims file. VA treatment records have been added to the record since the supplemental statement of the case (SSOC) issued in April 2011. As such, a new SSOC should be issued for the claim on appeal. 38 C.F.R. §§19.31, 20.1304 (2012). The appeal is again 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 claims service connection for hypertension. He (and his representative in statements of record dated in April 2010 and April 2013) has asserted that the disorder is secondary to three service-connected disorders - diabetes mellitus type 2 (diabetes), posttraumatic stress disorder (PTSD), and heart disease. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the revised provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), the revised provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. The record indicates that the Veteran's service connection claim on appeal was filed prior to the effective date of the revised regulation. Pursuant to the Board's May 2010 remand, an examination and opinion was provided with regard to the secondary service connection claim based on diabetes. In June 2010 reports of record, the VA examiner opines that hypertension likely is not secondary to diabetes because hypertension predated onset of diabetes. The examiner did not comment on whether hypertension relates in any way to heart disease or PTSD, both of which (the record suggests) predated onset of hypertension. As such, additional medical inquiry is warranted here. Furthermore, the April 2011 SSOC indicates that, in readjudicating the claim to service connection for hypertension, VA treatment records dated from 2004 to 2011 were considered. As the record contains VA treatment records dated until June 2011, it can be inferred that certain of the records dated in 2011 were not considered in the SSOC. As such, an additional SSOC is due here. 38 C.F.R. §§19.31, 20.1304 (2012). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following actions: 1. Attempt to obtain and associate with the claims folder VA medical records pertaining to any treatment the Veteran may have received for his hypertension since June 2011. If no such treatment records exist, the claims file should be documented accordingly. 2. Forward the Veteran's claims files to a VA physician for review. The physician is asked to render opinions as to the following: a. is it at least as likely as not that any current hypertension was caused by the Veteran's heart disease, or by his PTSD? b. is it at least as likely as not that any current hypertension has been aggravated (increased in severity beyond the natural course of the disability) by the Veteran's heart disease, or by his PTSD? The examiner must review the claims folder prior to issuance of the opinions, to include any newly associated records obtained as a result of this remand. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. After all the above development has been completed, readjudicate the claim on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If the issue remains denied, the Veteran should be provided with a SSOC as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ BETHANY L. BUCK 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).