Citation Nr: 1327334 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-08 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a vision disability, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected disabilities. 3. Entitlement to a rating in excess of 60 percent for coronary artery disease (CAD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to May 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The procedural history as to the claims on appeal was reported in detail in a January 2011 Board decision and will not be repeated here. It is noted, however, that the current claims were remanded in that decision for additional evidentiary development. This development included obtainment of a VA examination addressing the medical questions raised regarding the claim for service connection for HTN. The requested examination was conducted in February 2011 and the resulting report is of record. Most recently, in March 2013, the Veteran provided testimony at a Travel Board hearing which was held in Chicago, Illinois, before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As to the Veteran's claims of service connection for vision disability and for HTN, the Board has determined that prior to further appellate review of the claims additional evidentiary development is warranted. Specifically, to afford the Veteran VA examinations by qualified medical specialists to determine the etiology of the Veteran's vision disability (diagnosed as glaucoma) and HTN. The Veteran claims, in part, service connection for vision disability and HTN are secondary to his service-connected diabetes mellitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). 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) (2012). Service connection for certain chronic diseases, including cardiovascular-renal disease, including HTN, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2012). The Veteran's STRs are negative for any evidence of a vision disability or for high blood pressure. STRs are silent for any findings or treatment for vision problems or for high blood pressure. Post service VA treatment records show that the first indication that the Veteran was diagnosed as having glaucoma was in 2006. His HTN was diagnosed approximately at the same time as his diabetes was initially reported in approximately 2009. There is no medical evidence of record earlier than these dates showing diagnoses of vision problems or HTN. It is also noted that diabetic retinopathy has not been diagnosed. Of record is an October 2007 examination which addressed the etiology of the Veteran's vision disability and his HTN. The examiner noted that glaucoma was not related to diabetes but did not provide rationale for this opinion. As to HTN, the examiner noted that the Veteran had HTN prior to diabetes and that they were not causally related. In support of his claim, the examiner noted that there was no renal insufficiency. A February exam report essentially provides the same opinion and rationale as to the etiology of HTN. The Veteran's glaucoma was not discussed. At the March 2013 hearing, the Veteran testified in support of his claims. He did not understand how it could logically be determined that his HTN was not a secondary condition to his diabetes. (Tr. at pg. 6.) While it was pointed out that the examiners opined that his HTN pre-dated his diabetes, he asserted that there was no clear cut data reflecting this. (Tr. at pg. 7.) He also asserted that his vision problems had increased. He still felt like his impaired vision was also related to his diabetes. (Tr. at pgs. 16-17.) It is noted that additional VA examinations (diabetes and general medical) were scheduled for March 2013. The Veteran states that he was unable to appear as he was hospitalized at the time. (Tr. at pg. 21.) The Board finds the 2007 and 2011 VA opinions to be of limited probative value because they did not either provide adequate medical rationale for their opinions or provide opinions that are consistent with the other medical evidence of record. For example, no rationale was given in 2007 as to why glaucoma is not causally related to diabetes. Moreover, neither the 2007 or 2011 exam reports explain how it was determined that the Veteran's HTN pre-dated his diabetes. See e.g. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion based upon an inaccurate factual premise is not probative); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). Thus, given the foregoing, the Board finds that VA medical examinations by appropriate medical specialists with respect to the claims for service connection for vision disability (glaucoma) and HTN, each claimed at least in part, as secondary to diabetes mellitus are necessary. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). As to the Veteran's claim that a disability rating in excess of 60 percent is warranted for CAD, it is noted that at the recent hearing, the Veteran testified that he continued to experience symptoms associated with his CAD, and he felt that his symptoms had worsened. (Ht. tr. at pg. 20 and following.) He and his representative assert that current manifestations warrant an increased rating as to this disorder. The Board's finds that, after all outstanding medical records are associated with the claims file, a contemporaneous and thorough VA cardiac examination (which takes into account the records of the Veteran's prior medical history, to include any additional medical evidence received subsequent to this remand) would be helpful in resolving the issue on appeal. See Colayong v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). It is noted that a thorough VA examination regarding the Veteran's CAD has not been conducted in several years. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of a Claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Also, on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002 & Supp. 2012). Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in 2010. Accordingly, the case is REMANDED for the following action 1. Obtain and associate with the claims file copies of all records of treatment of the Veteran for his vision disability, HTN, and diabetes from the Jesse Brown VA Medical Center in Chicago, Illinois, that are not already of record. If such efforts prove unsuccessful, documentation to that effect should be added to the claims file. The Veteran must also be provided with an opportunity to submit such reports and any others he deems pertinent. 2. After completing the requested actions and any additional evidence has been obtained, schedule the Veteran for VA eye and cardiovascular examinations to determine the etiology of the Veteran's glaucoma and HTN, respectively. The claims folder must be made available to each examiner in conjunction with their respective examination and each examiner should acknowledge review of the claims folder in his or her examination report or in an addendum. Each examiner must provide an opinion to the following questions as it pertains to their respective disability (i.e., eye disability, to include glaucoma or HTN): (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's eye disability, to include glaucoma, and HTN had their onset during his period of active military service? Did HTN manifest to a compensable degree within the initial post-service year?; and, (ii) Is it at least as likely as not (50 percent or greater probability) that the service-connected diabetes caused or permanently worsened the Veteran's eye disability or HTN? If such aggravation is found to exist, each examiner should provide an assessment, if possible, of the baseline level of impairment of their respective disorder (eye or HTN) prior to aggravation, and then provide a quantification, if possible, of the level of additional impairment above and beyond this baseline level imposed by the service-connected diabetes mellitus. In responding to the above cited questions, the eye examiner is requested to comment on the VA exam report in October 2007 (regarding the etiology of an eye disorder) reporting that glaucoma was not causally related to diabetes but not providing any rationale. The cardiac examiner is requested to comment on the VA exams from October 2007 and February 2011 (regarding the etiology of HTN) reporting that HTN was not causally related to diabetes in that HTN pre-dated the diabetes, although it appears for the medical records that these conditions were diagnosed around the same time. If the examiners cannot provide their respective opinions without resorting to speculation, they should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A complete rationale must be supplied for any opinion rendered. 3. Provide the Veteran with an appropriate examination regarding the severity of CAD. The claims folder, including a copy of this remand, must be made available to the examiner. Any indicated tests and studies must be accomplished. A fully supported rationale must be provided for all opinions, to include citation to evidence of record. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner must specifically assess the Veteran's METs and ejection fraction, and provide comment on whether there is continuous medication, cardiac hypertrophy, dilatation on electrocardiogram, echocardiogram, or X-ray, and/or left ventricular dysfunction. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The RO/AMC should review the examination reports to ensure that they contain all information and opinions requested in this remand and that any recommended additional examination and testing has been conducted. If any examination report is found to be insufficient, it should be returned to the examiner for necessary corrective action, as appropriate, under 38 C.F.R. § 4.2 (2011). 6. After completing the requested actions, the claims on appeal should be readjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded an appropriate time period for response before the claims folder is returned to the Board for further appellate 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).