Citation Nr: 1328695 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-45 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral foot disability. 2. Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to service-connected bilateral foot disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to November 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction over the case was subsequently transferred to the RO in Montgomery, Alabama, and that office initially forwarded the appeal to the Board. In February 2011, a hearing was held before the undersigned sitting at the RO. In January 2012, the Board granted increased evaluations for service-connected left and right foot disabilities. These issues are no longer for consideration. At that time, the Board remanded the issues of service connection for hypertension and type 2 diabetes mellitus for further development. The case has since returned to the Board. The Virtual VA and VBMS folders have been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In January 2009, the RO in pertinent part denied service connection for hypertension and type 2 diabetes. The Veteran disagreed with the decision and subsequently perfected this appeal. In various statements and testimony, the Veteran argued that he had high blood pressure during service and continuing to date. He further contends that his elevated blood pressure was caused by the pain in his feet. Also, that he was made to eat starchy and high calorie foods during service to gain weight (from 130 to more than 150 pounds) and that this contributed to his diabetes. Pursuant to the January 2012 remand, VA requested the Veteran's service treatment records. On review, the claims folder contains his enlistment examination, various clinic notes, a narrative summary of hospitalization, and a medical board report. The separation examination, if any, is not a matter of record. In an effort to obtain any additional service records, which might include findings related to blood pressure readings, weight, etc., the in-patient clinical records related to the Veteran's May 1976 hospitalization should be requested. See 38 C.F.R. § 3.159(c)(2). The Veteran receives VA medical treatment. VA records were last added to the Virtual VA eFolder in February 2012. On remand, additional VA records should be obtained. Id. Medical evidence of record shows that the Veteran currently has hypertension and type 2 diabetes mellitus. These conditions were not noted during service or within one year following discharge and the pertinent question is whether the currently diagnosed disabilities are related to active military service or service-connected disease or injury. See 38 C.F.R. §§ 3.303, 3.310. On VA general medical examination in August 2001, the Veteran reported a history of hypertension and diabetes for 6 years. In the diagnosis section, the examiner stated that the Veteran's foot condition was not related to his diabetes or hypertension as these conditions appeared many years later. An April 2011 VA outpatient addendum indicates that the Veteran was requesting a signed statement that he was forced on a diet which caused him to develop diabetes. The physician noted that he "discussed with patient that this is unlikely and [he had] no records to base such a statement upon." A March 2012 private medical record notes the Veteran's reported history of being 130 pounds when he entered the service and at time of discharge was significantly heavier, related to the military diet and has developed the metabolic syndrome. The physician stated "I think it is as likely as not that the diabetes and hypertension are related to the military service in that way." The March 2012 opinion and the other evidence reflect that the Veteran has current hypertension and diabetes that may be associated with service. The evidence is, however, insufficient to decide the claim. The private physician did not indicate the amount of weight that the Veteran gained during service, the amount of weight the Veteran gained after service, or address the fact that neither disease manifested until many years after service. A VA examination to answer these questions is therefore warranted. 38 U.S.C.A. § 5103A(d) (West 2002). The Board also notes that additional evidence was received at the Board after the most recent, February 2012 Supplemental Statement of the Case (SSOC) and after the case was re-certified to the Board. This evidence was not accompanied by a waiver of initial RO review and should be considered on remand. Accordingly, the claims for entitlement to service connection for diabetes and hypertension are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should request in-patient clinical records pertaining to the Veteran's May 1976 hospitalization at the Naval Regional Medical Center Camp Pendleton. All records obtained should be associated with the claims folder or virtual folders. 2. Obtain any outstanding VA treatment records for the period from February 2012 to the present. 3. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 4. Thereafter, the AMC/RO should request an opinion from an appropriate VA physician to determine the nature and likely etiology of the Veteran's hypertension. The claims folder must be available for review by the physician. Additionally, all relevant medical records must be made available to the physician for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The physician is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions, including that his weight increased from 130 pounds to more than 150 pounds. The physician is requested to provide an opinion as to whether it is at least as likely as not that currently diagnosed hypertension is related to active military service or events therein. In making this determination, the physician is requested to discuss the March 2012 private medical record which addresses the development of metabolic syndrome. The Veteran's lay assertions of in-service high blood pressure readings related to foot pain and continuing symptoms should also be discussed. The physician is also requested to discuss the Veteran's lay assertions of in-service weight gain. If the physician determines that hypertension is not related to military service, he/she is requested to provide an opinion as to whether hypertension is either caused or aggravated (permanently worsened) by service-connected bilateral foot disability. A complete rationale should be provided for each opinion offered. 5. The AMC/RO should also request an opinion from an appropriate VA physician to determine the nature and likely etiology of the Veteran's type 2 diabetes mellitus. The claims folder must be available for review by the physician. Additionally, all relevant medical records must be made available to the physician for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The physician is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions, including that his weight increased from 130 pounds to more than 150 pounds. The physician is requested to provide an opinion as to whether it is at least as likely as not that currently diagnosed type 2 diabetes mellitus is related to active military service or events therein. In making this determination, the physician is requested to discuss the March 2012 private medical record which addresses the development of metabolic syndrome. The physician is also requested to discuss the Veteran's lay assertions of in-service weight gain. If the physician determines that type 2 diabetes mellitus is not related to military service, he/she is requested to provide an opinion as to whether type 2 diabetes mellitus is proximately due to or aggravated (permanently worsened) by service-connected bilateral foot disability. A complete rationale should be provided for each opinion offered. 6. After the development requested has been completed, the AMC/RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the AMC/RO should implement corrective procedures at once. 7. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issues of entitlement to service connection for hypertension and for type 2 diabetes mellitus. All evidence received since the February 2012 SSOC should be considered. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J. HAGER Acting 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).