Citation Nr: 1323305 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-13 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD) and Type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for hypertension was previously before the Board in April 2012 when the claim was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("the Court"). In a February 2013 Order, the Court granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel and remanded the claim back to the Board for further proceeding consistent with the February 2013 Order. 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 Consistent with the Court's February 2013 Order granting the parties' JMR, the Board has determined that remand of the Veteran's claim of entitlement to service connection for hypertension, including as secondary to service-connected PTSD and Type II diabetes mellitus, is appropriate. The law provides that VA disability compensation is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown 7 Vet. App. 439 (1995); 38 C.F.R. §3.310. The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 C.F.R. §5103A; 38 C.F.R. § 3.159. In the JMR, the parties argued that VA failed in its duty to assist the Veteran in the development of his claim by not providing him a medical examination or opinion in connection with his claim, specifically with regard to whether the hypertension is proximately due to or aggravated by his service-connected PTSD and/or Type II diabetes mellitus. Consequently, a VA examination and opinion are needed prior to further consideration of the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of updated VA treatment records at the VAMC Shreveport for the period from February 2009 to present. 2. Following the completion of the above, arrange for the Veteran to undergo an appropriate VA medical examination to obtain an opinion as to relationship between hypertension and service-connected disabilities. The examiner is directed to respond to the following questions: What is the likelihood (i.e. less likely than not (unlikely), at least as likely as not, or more likely than not) that the Veteran's current hypertension: (a) is aggravated by the service-connected PTSD? (b) is proximately due to or the result of the service-connected PTSD? (c) is aggravated by the service-connected Type II diabetes mellitus? (d) is proximately due to or the result of the service-connected Type II diabetes mellitus? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner should provide a complete rationale for the opinions expressed. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. The examiner must review the claims folder in connection with the above inquiries and the examination should reflect that such a review was conducted. 3. After the development requested has been completed, the agency of original jurisdiction (AOJ) must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the claim. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ MATTHEW D. TENNER Acting 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).