Citation Nr: 1325912 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 685 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2010 by the RO. The Virtual VA claims file includes records of treatment at the VA Medical Center from September 2003 to October 2006. The Board notes that, in January 2010, the Veteran's claim for service connection for hypertension was adjudicated as an application to reopen the claim. The claim had been previously denied in August 2008. In addition to denying service connection for hypertension the RO's August 2008 decision also denied service connection for type II diabetes mellitus, on the basis that the Veteran did not have diabetes mellitus. The claim for hypertension claimed as secondary to diabetes mellitus was accordingly denied in August 2008 on the basis that the Veteran did not have diabetes mellitus and was not service connected for the condition. However, in April 2009, the Veteran submitted a private medical opinion and associated private treatment records that established that the Veteran does have diabetes mellitus. As a result, in September 2009, the RO granted service connection for diabetes mellitus. The Board finds that the medical evidence received in April 2009 establishing that the Veteran has type II diabetes mellitus was new and material evidence with respect to the claim for service connection for hypertension as secondary to type II diabetes mellitus. This evidence addressed an essential element required to substantiate the claim and raised a reasonable possibility of substantiating the claim. The evidence was received within the one-year appeal period after the August 2008 decision denying the claim for service connection for hypertension. As a result, the August 2008 rating decision did not become final; rather, readjudication of the August 2008 rating decision that denied service connection for hypertension is required. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b) (new and material evidence-pending claim). The issue on the title page of this decision has been phrased accordingly. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In an August 2012 Informal Hearing Presentation, the Veteran's representative correctly noted that, in a March 1981 Application for Compensation or Pension, the Veteran sought service connection for diabetes mellitus and asserted that it was "[n]oticed at separation physical." The representative averred that the Veteran might have had diabetes mellitus that was detected at separation, but did not seek timely follow-up treatment and could have caused his hypertension. The Board is not competent to determine from the medical evidence of record whether the Veteran might have had untreated hypertension that resulted in diabetes mellitus. An August 2011 VA examiner identified when hypertension was diagnosed, but did not provide an opinion as to when it was first manifested. As a result, the Board will request a medical opinion to supplement an August 2011 VA examiner's findings. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran had any disorder that was related to his period of active service, and if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). The claims file includes records of treatment at the VA Medical Center from September 2003 to October 2006. These include a September 2003 note of VA primary care "establishment of care" examination indicating that the Veteran was receiving medications for hypertension, but did not know what medication he was taking. It was noted that the Veteran received most of his medications from the Indian Health Service in Wagner, South Dakota, because he lived on that reservation. Any additional records of treatment for hypertension or diabetes mellitus at the Indian Health Service in Wagner, South Dakota, should be sought. See 38 U.S.C.A. § 5103A(a)-(c) (duty to assist). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to request that he identify all VA and non-VA health care providers who have treated him for hypertension or diabetes mellitus since service, but may not have been previously asked to provide pertinent records in connection with his claim. After obtaining any appropriate authorizations for release of medical information, the RO should seek to obtain copies of any identified records and associate them with the record. This should include copies of all records from the Indian Health Service in Wagner, South Dakota that have not been previously received. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them, along with any other medical evidence, in support of his claim. 2. After all available medical evidence has been received, the RO should have the claims file referred to the clinician who performed the August 2011 VA examination or another appropriately qualified physician if the examiner is not available. The VA clinician should be asked to address the May 1981 Application for Compensation or Pension showing that the Veteran had sought service connection for diabetes mellitus and asserted that the conditions was "[n]oticed at separation physical." The clinician should review the service treatment records and the post-service records of treatment and provide an opinion as to whether it is at least as likely as not that the Veteran's current type II diabetes mellitus had its clinical onset during service or otherwise is due to an event or incident of the period of active service. In addition, in light of the current assertions of having had diabetes mellitus since service, the examiner should provide a revised opinion as to whether it is at least as likely as not that the claimed hypertension was caused or aggravated (chronically worsened) by the service-connected type II diabetes mellitus. In all conclusions, the examiner should identify and explain the medical basis, with identification of the relevant evidence of record. The examiner should provide a fully reasoned explanation for his or her opinions, as a matter of medical probability, based on established medical principles and his or her clinical experience and medical expertise. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case must be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ STEPHEN L.WILKINS 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).