Citation Nr: 1317646	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  07-01 463	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from May 1966 to April 1970.

This matter initially comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Columbia, South Carolina. 

This case was remanded by the Board for additional development in October 2010 and November 2012.  

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

A review of the record discloses that the Veteran's claim to reopen the issue of entitlement to service connection for hypertension must again be remanded for further development.  To that end, while the provisions of 38 C.F.R. § 3.159(c)(4)(iii) (2012) provide that VA has a duty to conduct a medical examination only after new and material evidence has been submitted, this Veteran was nonetheless afforded a VA examination in August 2007 despite the finality of a January 2002 rating decision which denied entitlement to service connection for hypertension.  

Alas, while the August 2007 VA examiner addressed whether the Veteran's hypertension was directly related to service and/or his service connected diabetes mellitus, the examiner did not address whether diabetes permanently aggravates the appellant's hypertension.  Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Additional disability resulting from the aggravation of a non-service-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) (en banc).

As the August 2007 opinion did not address the question of aggravation, further development is now required.  Simply put, once VA undertakes the effort to provide a medical opinion, it must provide an adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  Accordingly, a remand is warranted.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC is to arrange for the evidence to be reviewed by a VA cardiologist.  The cardiologist is to be provided access to the Veteran's claims folders as well as the appellant's Virtual VA file.  Following a review of all of those documents, the cardiologist is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran's hypertension has been permanently aggravated by the appellant's diabetes mellitus.   The cardiologist must offer a fully reasoned rationale for all opinions offered.

2.  Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issue.  If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or 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).


_________________________________________________
DEREK R. BROWN
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).