Citation Nr: 1327295 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-16 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to February 1971, a portion of which represented service in the Republic of Vietnam. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a decision of May 2011, the Board granted entitlement to service connection for Type II diabetes mellitus. At that same time, the Board remanded for additional development the issue of entitlement to service connection for hypertension. In a decision of October 2012, the Board denied entitlement to service connection for hypertension, on both a direct basis, and as secondary to service-connected diabetes mellitus. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court) which, in an April 2013 Order, remanded the Veteran's case to the Board for action consistent with an April 2013 Joint Motion. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the aforementioned Joint Motion for Remand in April 2013, it was noted that the Board's statement of reasons and bases was inadequate regarding the discussion of hypertension on a "direct" basis. More specifically, despite the Board's finding that the Veteran served in Vietnam during the regulatory presumed exposure period for Agent Orange, and having determined that the Veteran's claim should be adjudicated on a direct service connection basis, the Board failed to analyze whether the Veteran would be entitled to service connection for hypertension on a "direct" basis due to the Veteran's presumed exposure to Agent Orange. Further noted was that a June 2011 VA examination upon which the Board relied to adjudicate the Veteran's claim was inadequate for rating purposes. More specifically, the June 2011 VA examiner discussed only the possibility of the Veteran's hypertension being caused or aggravated by his service-connected diabetes. Under the circumstances, it was determined that the Board should return the 2011 VA opinion to its author for a further addendum regarding any nexus between the Veteran's service, to include his presumed exposure to Agent Orange, and his hypertension. Should the examiner who authored the 2011 VA opinion (and subsequent December 2011 addendum) prove unavailable, a competent substitute was to be found to author a new opinion. Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to December 2011, the date of the aforementioned VA addendum opinion, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran's entire claims folder should then be furnished to the same VA examiner who conducted the June 2011 VA examination and provided the December 2011 addendum to that examination. Should that examiner prove unavailable, the Veteran's entire claims folder should be furnished to another appropriate VA examiner. Following a review of the Veteran's entire claims folder, the examiner should offer an opinion as to whether the Veteran's hypertension as least as likely as not (50 percent probability or greater) had its origin during, or is in some way the result of, the Veteran's period of active military service, to include his presumed exposure to Agent Orange in the Republic of Vietnam. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file has been reviewed. 3. The RO/AMC should then review the aforementioned report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for service connection for hypertension, both on a direct basis, and as secondary to service-connected diabetes mellitus. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken the claim for benefits since the issuance of the most recent SSOC in May 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 D. LYON 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).