Citation Nr: 1327653 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-36 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1965 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. At the March 2013 hearing (upon a brief pre-hearing discussion with the Veteran and his representative) testimony was taken on the matter of the rating for the Veteran's service-connected skin disorder (tinea pedis/onychomycosis). A close review of the record found that while the Veteran had initiated an appeal in the matter by a notice of disagreement filed in October 2007 on that matter and a statement of the case (SOC) was issued in July 2009 (following a Decision Review Officer review requested by the Veteran), in his subsequent Substantive Appeal the Veteran expressly limited his the appeal to the matter of service connection for hypertension. Accordingly, the appeal in the matter of the rating for a skin disorder is considered withdrawn (see 38 C.F.R. § 20.204), and the Board does not have jurisdiction to consider an appeal in the matter. Nonetheless, the Board finds that the Veteran's testimony and the argument presented at the hearing, allegation worsening of the skin disorder, raise a new claim seeking an increased rating for the skin disability (the hearing testimony is evidence in the matter). The agency of original jurisdiction (AOJ) has not adjudicated this new claim, and therefore the Board does not have jurisdiction in the matter. It is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran claims he has hypertension that was either incurred in service or is secondary to his service-connected type 2 diabetes mellitus and/or posttraumatic stress disorder (PTSD). His service treatment records are silent for complaints, treatment or diagnosis of hypertension. The record shows an elevation in the Veteran's blood pressure during service; on service induction examination his blood pressure was 130/80, and on service separation examination it was 134/90. Furthermore, he has established service connection for type 2 diabetes mellitus and for PTSD. The "low threshold" standard (as to when an examination to secure a medical opinion is necessary) endorsed by the U.S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is met. Accordingly, the case is REMANDED for the following: 1. The RO should ensure that all due process requirements in this matter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met. The RO must notify the Veteran (and his representative) of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim of service connection hypertension under a secondary service connection theory of entitlement; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). He must be afforded a reasonable opportunity to respond. 2. The RO should secure for the record updated copies of the complete clinical records of all evaluations and/or treatment the Veteran has received for hypertension. He must assist in the matter by identifying the providers and submitting any necessary authorizations. 3. The RO should arrange for the Veteran to be examined by an internist to determine the likely etiology of his hypertension, and specifically whether it was incurred in service or was caused or aggravated by his service-connected type 2 diabetes mellitus and PTSD. The entire record, to include this remand, must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide an opinion that responds to the following: a) Is it at least as likely as not (a 50 % or better probability) that the Veteran's hypertension was incurred or aggravated during his active duty service? [The explanation of rationale for this opinion should include comment on the apparently elevated blood pressure reading noted on service separation examination.] b) Is it at least as likely as not (a 50 % or better probability) that the hypertension was either caused or aggravated by (increased in severity due to) the Veteran's service-connected type 2 diabetes mellitus and PTSD? If the opinion is to the effect that the service-connected disabilities did not cause, but aggravated, the hypertension, the examiner should identify, to the extent possible, the degree of disability that is due to such aggravation. If the hypertension is determined to not be related to the Veteran's service-connected disabilities, please identify the etiological factor(s) considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature. 4. The RO should then review the record and readjudicate the claim of service connection for hypertension, including as secondary to type 2 diabetes mellitus and PTSD. If it remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).