Citation Nr: 1324085 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-22 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, claimed as due to in-service exposure to herbicides, or as secondary to type II diabetes mellitus. 2. Entitlement to service connection for small vessel disease, claimed as due to in-service exposure to herbicides, or as secondary to type II diabetes mellitus. 3. Entitlement to service connection for multiple eye disabilities, claimed as due to in-service exposure to herbicides, or as secondary to type II diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1970 to February 1972. The evidence of record demonstrates that the Veteran served in the Republic of Vietnam during the Vietnam Era. This matter is before the Board of Veterans' Appeals (the Board) on appeal of May 2003 and February 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The first action denied the Veteran's claim for service connection for miscellaneous eye disabilities. The second rating action denied entitlement to service connection for small vessel disease and hyperlipidemia, and it also found that the Veteran had not submitted new and material evidence sufficient to reopen his claim for entitlement to service connection for hypertension. In August 2007, the Board remanded the eye issue for the purpose of obtaining additional evidence with respect to that claim. This issue was subsequently merged with the other issues then on appeal, and all issues were forwarded to the Board for review. In March 2011, the Board issued a Decision/Remand that found that the Veteran had submitted new and material evidence sufficient to reopen his claim for entitlement to service connection for hypertension. The Board also denied the Veteran's request for entitlement to service connection for hyperlipidemia. The reopened issue, along with the issues involving small vessel disease and various eye disorders, were then remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of obtaining additional evidence. In October 2011 and January 2013, the Board remanded the Veteran's claims to ensure compliance with its prior remand instructions, and to secure additional medical records. The Veteran's claims folder has since been returned to the Board for further appellate review. While the Veteran had requested a Board hearing, he informed VA in August 2010 that he wished to cancel the hearing. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issues of entitlement to service connection for small vessel disease and multiple eye disabilities, both to include as due to in-service exposure to herbicides or secondary to diabetes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam; accordingly, exposure to herbicides is presumed. 2. The competent and probative evidence does not support a finding that a relationship exists between the Veteran's currently diagnosed hypertension and his military service, and his hypertension is not a presumptive disorder for exposure to herbicides. 3. The competent and probative evidence of record shows that the Veteran's diagnosed hypertension is not causally related to his service-connected diabetes mellitus, and is not aggravated by his diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated, and is not secondary to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected diabetes mellitus. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As noted above, in March and October 2011 as well as in January 2013, the Board remanded this claim and ordered either the agency of original jurisdiction (AOJ) or AMC to obtain outstanding VA and private treatment records as well as medical treatise evidence and associate these documents with the Veteran's claims folder. Additionally, a medical opinion was to be obtained regarding the etiology of the Veteran's hypertension. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC attempted to obtain the Veteran's outstanding VA and private treatment records as well as medical treatise evidence. Additionally, a VA medical opinion was obtained in February 2013 regarding the etiology of the Veteran's hypertension, and a copy of the opinion was associated with his claims folder. The Veteran's hypertension claim was readjudicated via the May 2013 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been substantially complied with regarding the Veteran's hypertension claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date and disability rating elements of the claim, by letters mailed in April 2007 and October 2008. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. A VA medical opinion was obtained in February 2013 regarding the etiology of the Veteran's hypertension. The report of the medical opinion reflects that the examiner reviewed the Veteran's claims folder, reviewed his past medical history, and rendered opinions supported by rationale. The Board therefore concludes that the VA medical opinion is adequate. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran has indicated that he received private medical treatment from Coastal Vision Center, Dr. Schniper, and Dr. Adams. In an October 2011 letter, the AMC requested that the Veteran return signed and dated VA Forms 21-242 Authorization and Consent to Release Information in order to obtain these treatment records. As evidenced by the claims folder, the Veteran did not return a signed and dated medical authorization form. Moreover, pursuant to the January 2013 Board remand, the AMC was to contact the Veteran in order to obtain medical treatise evidence referenced by the Veteran's representative in his September 2011 Appellant's Brief, or any other articles that may serve to support the Veteran's contentions that his presumed exposure to herbicides in service caused to contributed to the development of his hypertension. The AMC thereafter requested this evidence from the Veteran via an April 2013 letter. The Veteran did not provide any response to the AMC's request. Although the absence of the private treatment records from Coastal Vision Center, Dr. Schniper, and Dr. Adams as well as medical treatise evidence supporting the Veteran's claim that his hypertension is related to in-service herbicide exposure is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records and medical treatise evidence because the Veteran had an obligation to assist VA in the development of his hypertension claim by providing signed and dated medical authorization forms as well as medical treatise evidence. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Board's decision to not remand the appeal for a fourth time to obtain these records is supported by the fact that the AMC made a sufficient attempt to locate the private treatment records and medical treatise evidence. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He withdrew his request for a hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to diabetes mellitus. Service connection for hypertension Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 38 C.F.R. § 3.309(e). These diseases are chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; AL amyloidosis, and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). 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). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the medical evidence of record indicates diagnosis of hypertension. See, e.g., the February 2013 VA examination report. Concerning in-service disease, the Veteran's service treatment records are absent any complaints of or treatment for hypertension. Blood pressure reading on examination in August 1969 was 120/80 and on examination in January 1972 was 126/70. Medical evidence of hypertension is shown in a private treatment record from Baptist Medical Center dated in September 1997. However, the Veteran reported the onset of hypertension 25 years prior to July 2002 in his claim for VA benefits. He has also reported the onset in 1980. See, e.g., a VA treatment record dated February 2011. In any event, this was many years after his discharge from active duty. The time between service discharge and onset of disability does not in and of itself preclude establishing service connection for this disability if the competent evidence shows that the disability is related to an in-service event such as the Veteran's claimed in-service herbicide exposure. In this regard, service personnel records confirm the Veteran's service in the Republic of Vietnam. Furthermore, the Board presumes that the Veteran was exposed to herbicides during his service in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). As discussed above, according to 38 C.F.R. § 3.309(e) (2012), certain diseases may be presumed to be related to exposure to herbicides; hypertension is not one of the listed diseases. On August 31, 2010, the Secretary of VA published a final rule in the Federal Register amending 38 C.F.R. § 3.309(e) to add, in part, ischemic heart disease as a presumptive condition. See 75 Fed. Reg. 53,202. Because ischemic heart disease refers only to heart disease, hypertension was not included. Therefore, hypertension may not be presumed to be related to herbicide exposure. However, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board adds that the Veteran is service-connected for diabetes mellitus, type II. Turning to the crucial question of a causal relationship, the competent and probative evidence demonstrates that the Veteran's currently diagnosed hypertension is not related to his military service, to include herbicide exposure or his diabetes mellitus. With respect to whether the Veteran's hypertension is related to his military service, a VA medical opinion was obtained in February 2013 regarding this matter. Pertinently, the examiner specifically considered the Veteran's reported in-service herbicide exposure as well as medical literature indicating a link between hypertension and herbicide exposure. After consideration of the Veteran's medical history, the examiner concluded that the Veteran's current hypertension is less likely as not (less than 50 percent or greater) related or aggravated by his military service. The examiner's rationale for her conclusion was based on her review of the Veteran's medical records as well as her review of medical literature and her clinical experience. The examiner noted that the Veteran's service treatment records did not document objective evidence for hypertension. She also reviewed the September 2011 Appellant's Brief which tended to link the development of hypertension with herbicide exposure via insulin resistance sustained by the Veteran due to herbicide exposure. The examiner reported that a review of the Veteran's medical records indicated a reported diagnosis of hypertension in 1980 and no diagnosis of diabetes until 2001. She further reported that when hypertension was diagnosed in 1980, there was no documentation of insulin resistance or signs or symptoms thereof. The examiner therefore stated that the objective evidence is insufficient to provide a diagnosis for insulin resistance in 1980, which was many years prior to the diagnosis of diabetes. Moreover, the examiner noted that a review of the cited study indicated that "...these data suggest that prior [tetrachlorodibenzo-p-dioxin] (a component of Agent Orange) exposure had a small effect that may promote insulin resistance and lead to increased susceptibility to type 2 diabetes." The examiner found that this "small effect" is insufficient objective evidence to provide a nexus between the Veteran's hypertension due to diabetes and/or the insulin resistance based on her review of the Veteran's medical history. With regard to a relationship between the Veteran's hypertension and his diabetes, the examiner also concluded in the February 2013 medical opinion that the Veteran's hypertension is less likely as not caused or aggravated by his diabetes, to include all of his diabetes medications. The examiner's rationale for her conclusion was based on her review of the Veteran's medical records, review of medical literature, and her clinical experience. As discussed above, the examiner reported evidence that the Veteran's hypertension was diagnosed many years prior to being diagnosed with diabetes, thereby confirming that the hypertension precluded the diabetes and thus was not caused by the diabetes. Further, a review of blood pressure records from 2003 to 2012 revealed good blood pressure control, and no objective evidence for aggravation of blood pressure due to diabetes or the medications taken therefore. The examiner therefore indicated that there is inadequate objective evidence to provide a nexus for the Veteran's claimed aggravation of hypertension due to diabetes. The February 2013 medical opinion was based upon a review of the record and analysis of the Veteran's medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Board further notes that although a VA treatment record dated August 2011 documents the Veteran's report that the onset of his diabetes was in the "1980's," there is no competent medical evidence indicating such. Indeed, the earliest medical evidence of record documenting diagnosis of diabetes is a private treatment record from the Florida Retina Institute dated July 2000, which is many years after the Veteran's reported onset of his hypertension. Pertinently, the July 2000 private treatment record noted that the Veteran had been a diabetic for the past six months. As such, although this particular record was not addressed by the February 2013 VA examiner, the Board nevertheless finds that her opinion is of great probative value as the onset of the Veteran's diabetes was many years after the onset of his hypertension. The Board adds that another VA examiner similarly concluded in a report dated April 2013 that after review of the Veteran's claims folder, his hypertension is not related to his military service, to include herbicide exposure, and was not caused or aggravated by his service-connected diabetes. As noted above, in the September 2011 Appellant's Brief, the Veteran's representative referenced two medical studies [which are not currently on file] that allegedly suggest that a relationship may exist between hypertension and Agent Orange exposure. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the medical studies referenced by the Veteran's representative are of a general nature and do not contain any information or analysis specific to the Veteran's case. Additionally, the Court has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Furthermore, the February 2013 VA examiner specifically reviewed the medical studies referenced in the September 2011 Appellant's Brief and concluded that the Veteran's hypertension is not related to either his military service or secondary to service-connected diabetes. The Board notes that K.W., M.D. opined in a private treatment record dated March 2007 that the Veteran's hypertension is as likely as not a result of his diabetes. Crucially, however, he did not provide a rationale for his conclusion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. On the contrary, as discussed above, the February 2013 VA examiner specifically noted the onset of the Veteran's diabetes which occurred years after the onset of his hypertension, as well as the Veteran's stable blood pressure readings after being diagnosed with diabetes. Notably, there is no mention of these factors in Dr. K.W.'s private treatment record. Accordingly, the Board finds the opinion of Dr. K.W. to be of no probative value in determining whether the Veteran's current hypertension is related to his diabetes. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent that the Veteran asserts that his hypertension is related to his military service or secondary to diabetes mellitus, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has hypertension that is due to service, including presumed herbicide exposure therein, or diabetes relates to an etiological question as to an internal, not directly observable disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning a relationship between his hypertension and military service or diabetes are therefore not competent in this regard. In this case, there is no evidence of hypertension to any degree within one year of discharge from active service. See 38 C.F.R. § 3.309(a) (2012). However, the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection apply to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not, however, asserted that he had continuity of symptomatology. Moreover, the evidence does not show that he had hypertension that was manifested in service with symptoms that continued thereafter. In short, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension, to include as due to presumed exposure to herbicide agents or secondary to diabetes mellitus. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for hypertension, claimed as due to in-service exposure to herbicides, or as secondary to type II diabetes mellitus is denied. REMAND Service connection for small vessel disease The Board remanded the case in January 2013 for a VA opinion as to the etiology of the Veteran's small vessel disease and relationship to his military service, to include in-service herbicide exposure, as well as his service-connected diabetes. The remand order noted that, in providing an opinion, the VA examiner should specifically consider opinions of Dr. R.H. [August 2002], G.J.S. [January 2003] and K.W. [March 2007] which link the Veteran's small vessel disease to diabetes mellitus and hypertension as well as an August 2002 MRI report showing possible ischemic changes and early demyelinating process in the Veteran's brain. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim. In conjunction with the prior remand, a VA medical opinion was obtained in March 2013 as to the Veteran's small vessel disease. The VA examiner specifically noted the August 2002 brain MRI. She thereafter concluded that the Veteran's MRI findings are of unknown exact cause (most likely multifactorial) and of unclear clinical significance. In an addendum dated April 2013, the VA examiner opined that the Veteran's small vessel disease is less likely as not due to the service-connected diabetes. The examiner's rationale for her conclusion was based on her finding that cerebral small vessel disease is a common aging phenomenon frequently found on CT and MRI scans of aging people. Moreover, these findings were thought to be related to cognitive and motor impairment, ultimately leading to dementia or Parkinsonism in some. In general, the relations are weak, and not all subjects with small vessel disease become demented or get Parkinsonism. The examiner noted that hypertension is a major risk factor for small vessel disease, and other risk factors include, but are not limited to, atherosclerosis, diabetes mellitus, atrial fibrillation, obesity, increasing age, and smoking. The examiner reported that the August 2002 brain MRI indicated a diagnosis of tremors which the examiner opined was not caused by small vessel disease. She further noted that there is no evidence of cerebral stroke, cerebral aneurysm, Parkinsonism, or dementia. Further, neurological examinations were non-focal, and the Veteran's risk factors include hypertension, diabetes mellitus, obesity, hyperlipidemia, and age. The examiner reported that to determine the degree to which each factor contributed to the small vessel disease would be speculative at best. Crucially, the VA examiner did not discuss the opinions of Dr. R.H. [August 2002], G.J.S. [January 2003] and K.W. [March 2007] which link the Veteran's small vessel disease to diabetes mellitus and hypertension as directed by the Board in the January 2013 remand. Moreover, the VA examiner did not provide an opinion as to whether the Veteran's small vessel disease is caused by his military service, to include herbicide exposure, or whether the small vessel disease is aggravated by the service-connected diabetes. As such, the Board finds that an additional medical opinion is warranted for compliance with the January 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Service connection for multiple eye disabilities The Board remanded this claim in January 2013 for the AOJ to schedule the Veteran for a VA eye examination in order to determine whether his diagnosed multiple eye disabilities, to include pseudophakia, cataracts, dry eye, ptosis, hypertensive retinopathy, retinal scars and detachment, and glaucoma suspect are related to his military service, to include herbicide exposure, or was caused or aggravated by his service-connected diabetes mellitus. The remand specifically noted that the VA examiner should review a VA eye examination dated June 18, 2012 at which time the Veteran complained of increased burning and tearing of the eyes during the last few months, with symptoms worsening when he watches television or uses the computer and that as part of the treatment plan, he was instructed to control his blood sugar. The Veteran was afforded a VA eye examination in March 2013. After examination of the Veteran and review of his claims folder, the VA examiner rendered medical nexus opinions as to the Veteran's pseudophakia, retinal detachment, dry eye syndrome, allergic conjunctivitis, and ptosis. She also declined to diagnose the Veteran with hypertensive retinopathy and reported no evidence of optic nerve rim thinning or elevated intraocular pressure indicating the Veteran is not a glaucoma suspect. Because no diagnosis of hypertensive retinopathy or glaucoma suspect was rendered, the VA examiner did not provide an opinion as to whether the Veteran's hypertensive retinopathy or glaucoma suspect was related to his military service or was caused or aggravated by his service-connected diabetes mellitus. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, although hypertensive retinopathy and glaucoma suspect were not rendered during the March 2013 VA examination, the Board observes that, as discussed in the January 2013 remand, the Veteran has been diagnosed with these disabilities during the appeals period. There is no medical opinion of record which addresses a relationship between the Veteran's previously diagnosed hypertensive retinopathy and glaucoma suspect and either his military service or his service-connected diabetes mellitus. In light of the foregoing, the Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's previously diagnosed hypertensive retinopathy and glaucoma suspect is related to his military service or his service-connected diabetes mellitus. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). The Board also notes that although the March 2013 VA examiner noted a review of the Veteran's claims folder, it is unclear whether she reviewed the June 18, 2012 VA eye examination at which time the Veteran complained of increased burning and tearing of the eyes as directed by the Board in the January 2013 remand. In this regard, the Board observes that the VA examiner indicated that the Veteran did not suffer from an inflammatory eye condition and/or injuries upon examination. Further, she did not specifically reference this treatment record in the examination report. As such, on remand, the June 2012 VA eye examination should be made available for review. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should forward the claims folder to the same VA examiner who provided the March and April 2013 medical opinions pertaining to the Veteran's small vessel disease. If this examiner is not available, the claims folder should be forwarded to another qualified medical practitioner. The examiner's report must specifically reflect that the claims folder was reviewed. In particular, the examiner should review the August 2002 MRI report showing possible ischemic changes and early demyelinating process in the Veteran's brain, as well as the three subsequent opinions of Dr. R.H. [August 2002], G.J.S. [January 2003] and K.W. [March 2007], linking the Veteran's small vessel disease to diabetes mellitus and hypertension. The examiner should discuss these findings in light of the Veteran's brain MRI and her own observations and review of the record, and determine whether it is as likely as not that the Veteran has any small vessel disease, systemic or otherwise, that was caused, or aggravated beyond its normal progression, by his diabetes, to include medications prescribed therefore. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's small vessel disease found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. The examiner should also determine whether it is likely as not that the Veteran has a small vessel disease that is related to his military service, to include his presumed in-service exposure to Agent Orange. The examiner's attention is directed to the medical treatise evidence referenced by the Veteran's representative on page 3 of his September 2011 Brief regarding the Veteran's presumed exposure to herbicides in formulating her opinion. A complete rationale for each opinion should be provided. If the examiner feels that another examination is warranted in order to provide the requested opinions, then one should be scheduled. 2. The RO/AMC should forward the claims folder to the same VA examiner who provided the March 2013 VA eye examination. If this examiner is not available, the claims folder should be forwarded to another qualified medical practitioner. The examiner's report must specifically reflect that the claims folder was reviewed. Additionally, since some of the Veteran's medical records are located only in the Veteran's electronic claims folder, the RO/AMC must ensure the VA examiner has access, either through the Virtual VA eFolder or via paper copy, to a relevant VA treatment report, an eye follow-up exam, dated June 18, 2012, which indicates that the Veteran complained of increased burning and tearing of the eyes during the last few months, with symptoms worsening when he watches TV or uses the computer. As part of the treatment plan, the Veteran was instructed to control his blood sugar. See the Veteran's June 18, 2012 VA Eye Follow-Up Examination Report by Dr. R. K. [located in the Veteran's electronic claims folder, maintained as part of the Virtual VA system]. The VA examiner should note a review of this examination. After review of the Veteran's medical records, the VA examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's previously diagnosed hypertensive retinopathy and glaucoma suspect are related to his military service, to include his presumed in-service exposure to Agent Orange. In formulating this opinion, the examiner's attention is directed to medical treatise evidence referenced by the Veteran's representative on page 3 in his September 2011 Brief. The examiner should also provide an opinion as to whether it is as likely as not that the Veteran's previously diagnosed hypertensive retinopathy and glaucoma suspect were caused, or aggravated beyond its normal progression, by his diabetes, to include medication prescribed therefore. As above, a complete rationale for each opinion should be provided. A report should be prepared and associated with the Veteran's claims folder. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review all the evidence of record, to include all updated VA treatment reports that have been associated exclusively with the Veteran's electronic claims folder, and readjudicate the Veteran's service-connection claims on both a direct and secondary basis. If the Veteran's claims are denied, in whole or in part, the RO should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the appeal should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs