Citation Nr: 1324056 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-42 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as a result of exposure to herbicides, or as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Attorney, Rebecca C. Patrick ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active service from December 1966 to November 1969. He also had subsequent reserve service, the exact dates of which have not been confirmed. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO), which denied the Veteran's claim for service connection for hypertension. The Veteran's appeal was previously before the Board in July 2011 at which time the Board rendered a decision denying the issue of service connection for hypertension. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in November 2012, the Court vacated the Board's denial of this service connection claim and remanded the case for readjudication in accordance with the decision. Accordingly, the appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the claim for service connection for hypertension. VA has a duty to consider the Veteran's service connection claim under all reasonably apparent theories under which service connection may be granted. See Kent v. Nicholson, 20 Vet.App 1, 16 (2006); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). The Veteran, via his representative, contends that his hypertension is connected to his military service as a result of exposure to herbicides, or as secondary to service-connected type II diabetes mellitus. The record must be further developed in order to adjudicate the Veteran's claim in consideration of the reasonably apparent theories of the Veteran's service connected hypertension claim. The Court found that further compliance with VA's duty to assist is required. The Veteran's complete STRs and service personnel records, to include the Veteran's periods of ACDUTRA and service records prior to the Veteran's U. S. Army Ready Reserve service, should be obtained. See 38 U.S.C. § 5103A(a)(1). Upon obtaining the Veteran's STRs and service personnel records, the Veteran should be afforded a new VA examination. The Veteran was afforded a VA examination in July 2010; however, the VA examiner did not opine as to whether the Veteran's hypertension had its onset during active duty service, or whether the Veteran's hypertension resulted from a delayed direct onset connected to active duty service. See 38 C.F.R. § 3.303(d). Therefore, a new VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, the examiner should review the Veteran's claim's file in its entirety and address these theories. The Board has noted that the Veteran and his representative have also argued that the Veteran became obese during service, and later developed hypertension as a result of that obesity. The Veteran's service medical records reflect a diagnosis of mild obesity was made on an annual examination in June 1978 for Reserve purposes. Following examination, the diagnosis was obesity, NCD [not considered disabling]. Similarly, a reserve examination dated in December 1982 noted that the Veteran was six pounds overweight. However, the Board is of the opinion that because mild obesity is not a disability for which compensation may be paid, there cannot be a valid claim for service connection for hypertension on the basis that it is secondary to that mild obesity. Therefore, the Board will not obtain any medical opinion regarding the obesity theory. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's STRs and service personnel records, including records prior to the Veteran's U. S. Army Ready Reserve periods of service. 2. Verify the Veteran's periods of ACDUTRA service. 3. After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment or diagnosis of hypertension that the Veteran has received. 4. Then, afford the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his current hypertension disorder. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to consider all statements provided by the Veteran and his representative as related to the Veteran's symptoms, including when the onset of symptoms occurred, as observed by him and others since service, review the record, including all blood pressure readings, and offer opinions as to the following questions: a. Whether it is more likely than not (i.e., probability greater than 50 percent) the Veteran's diagnosed hypertension had its clinical onset during any periods of active duty service, to include periods of ACDUTRA, or is otherwise related to service? The examiner should specifically comment on any blood pressure readings noted during service, as well as any reports of medical history containing references to the presence or absence of a history of high blood pressure. b. Whether it is more likely than not (i.e., probability greater than 50 percent) the Veteran's diagnosed hypertension had a delayed direct onset related to active military service, to include as developing after service as a result of exposure to herbicides during service? c. Whether it is more likely than not (i.e., probability greater than 50 percent), the Veteran's diagnosed hypertension was caused or aggravated by the Veteran's service-connected type II diabetes mellitus? If the examiner finds that the hypertension was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. For the purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale should be given for all opinions and conclusions expressed. 5. Ensure that the examination report complies with (answer the questions posed in) this Remand. Then, readjudicate the issue of entitlement to service connection for hypertension. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). _________________________________________________ MICHAEL MARTIN 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).