Citation Nr: 1330760 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-08 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1967. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for Remand: To obtain another VA examination and medical opinion. The Veteran has a current diagnosis of diabetes mellitus, type II that is service-connected due to exposure to Agent Orange, effective April 2004. In November 2007, the Veteran filed a claim for service connection for hypertension due to Agent Orange exposure. In a July 2008 rating decision, the RO conceded that the Veteran had been exposed to Agent Orange during active duty but denied service connection because no evidence had been submitted supporting a link between herbicide exposure and the Veteran's hypertension. Thereafter, the Veteran provided his private medical records, and the RO readjudicated the claim, analyzing it broadly as a general claim for service connection. In a November 2008 rating decision, the RO continued its denial noting that there were no symptoms of hypertension in service; there was no diagnosis of hypertension until 20 years after service; there was no evidence to demonstrate a link between the Veteran's hypertension and his service-connected diabetes mellitus; and that on June 10, 2008, the VA Secretary announced, based on a National Academies of Sciences Institute of Medicine Report, that there is no evidence to support a presumption of service connection for hypertension due to herbicide exposure. The Veteran and his Representative have characterized the issue on appeal as one for entitlement to service connection for hypertension as secondary to the service-connected diabetes mellitus. See July 2011 Statement of Accredited Representative in Appealed Case; August 2013 Appellant's Brief; 38 C.F.R. § 3.310(a) (providing that disability proximately due to or the result of a service-connected disease or injury shall be service connected). However, as explained further below, the Board notes that there is evidence in the record which warrants further development of the claim for service connection for hypertension on a direct basis. Concerning this, the Board notes that VA has a duty to address all theories of service connection reasonably raised either by a liberal reading of the appellant's submissions or by the contents of the record. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009); see also Delisio v. Shinseki, 25 Vet. App. 45, 53 (2011) ("upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing"). As part of the development of his claim for service connection on a secondary basis, the Veteran was afforded a VA examination in January 2008. The examiner noted that the Veteran's claims file and his medical records were not requested by the RO, and so it appears that neither were available for the examiner's review. The examiner determined that cardiovascular disease, diagnosed as hypertension, was a condition "potentially related" to diabetes. However, the examiner concluded that the hypertension was not a complication of diabetes, noting simply "EGFR = 65." The Estimated Glomerular Filtration Rate (EGFR or eGFR) is a test to measure the level of kidney function and determine the stage of kidney disease. See http://www.kidney.org/kidneydisease/aboutckd.cfm. In the examination report, the examiner provided no explanation as to what the test or the result of "65" indicates or why it is important to a consideration of hypertension as related to diabetes. Therefore, the rationale for his opinion is insufficient to allow the Board to determine whether hypertension was at least as likely as not proximately caused by the service-connected diabetes mellitus. In addition, the examiner provided no rationale for his statement that the Veteran's hypertension is not a condition that is worsened or increased by the Veteran's diabetes. Thus, the opinion provides no assistance to the Board in determining whether the Veteran's hypertension was aggravated by his diabetes. Finally, the examiner did not comment on whether the Veteran's hypertension could be directly related to his active service. The only other medical opinion pertinent to the Veteran's hypertension claim is an October 2009 statement submitted by his private doctor. The doctor confirmed that the Veteran has a diagnosis of type II diabetes and explained he had a comorbidity of hypertension. The doctor noted that the Veteran is taking an angiotensin-receptor blocker to treat his hypertension and to preserve kidney function in regard to his diabetes. He noted that the conditions are interrelated, but the opinion was not clear about the nature of the interrelationship between the Veteran's diabetes and hypertension. A comorbid disease is one that occurs simultaneously with another. Thus, although the doctor did state the diseases are related, he provided no opinion as to whether the hypertension was caused by or aggravated by the Veteran's diabetes mellitus. Based on the foregoing, the Board finds that the opinion is inadequate and a remand for another VA examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). When, as here, the medical evidence of record is insufficient in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board is mindful that it cannot make its own independent medical determinations and is prohibited from exercising independent judgment to resolve medical questions. Id; see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, a remand is needed for a VA examination and medical opinion specific to the Veteran's secondary service connection claim. See also U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.3159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). With regard to the claim for service connection on a direct basis, the Board notes that the term "hypertension" means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. In this case, three blood pressure readings are shown in the Veteran's service treatment records: 120/70; 128/88; and 126/90, the last one being the reading shown on the separation examination report dated in September 1967. Private treatment records in the claims file dated as early as March 1969 show numerous blood pressure readings over the years. In fact, a high blood pressure reading of 170/120 was noted as early as 1971, only 4 years after separation from service. Although it is unclear when the Veteran was prescribed medication to control his blood pressure, the private records show that medication was considered to treat it as early as 1973, only 6 years after separation. Throughout the years thereafter, high blood pressure readings appear in the record, although the term "hypertension" was not noted in the early treatment notes. These readings shown include, among others: 150/100 in December 1974, 154/112 in April 1978, 158/110 in March 1980, 160/95 in September 1981 and 146/94 in March 1985. Because this evidence was not considered upon examination or by the RO, a remand is necessary for an opinion relevant to service connection for hypertension on a direct basis. Because this matter must be remanded for further evidentiary development, the Board takes this opportunity to supplement the claims file. The most recent VA treatment record associated with the claims file is dated January 2008 from the VA Medical Center in Minneapolis, Minnesota. On remand, the RO should obtain updated treatment records, if any, from this facility. Finally, the Veteran was never provided with a duty-to-assist letter concerning how to substantiate a claim of entitlement to service connection secondary to a service-connected disability or condition. On remand, the RO should send the Veteran a new Veterans Claims Assistance Act (VCAA) letter informing him of how to substantiate such a claim. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter advising him specifically of the laws and regulations pertaining to substantiating a claim of entitlement to service connection on a secondary basis. The Veteran should be afforded an adequate amount of time to reply and be asked to identify or submit any new evidence not already of record that addresses his claim. 2. Obtain and associate with the claims file any VA medical records from the VA Medical Center in Minneapolis, Minnesota from January 2008 to the present. 3. After all outstanding records have been associated with the claims file, schedule the Veteran for an examination by an appropriate specialist for the purpose of ascertaining the nature and etiology of his hypertension, to include as secondary to his service-connected diabetes mellitus, type II. Both the paper claims file and any relevant medical records contained in Virtual VA should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. Any tests and studies deemed helpful by the examiner should be conducted. First, the examiner should consider the Veteran's private medical records and opine as to whether, given the Veteran's elevated blood pressure reading of 170/120 only 4 years after separation from service and the indication that medication for high blood pressure was needed within 5 or 6 years of service, it is at least as likely that disease of hypertension had its onset in service as opposed to it being more likely that the onset of the disease was sometime after service. The examiner is asked to keep in mind the diastolic reading of 90mm on the Veteran's separation examination and opine as to likelihood (likely, unlikely, at least as likely as not) that that high reading was an early manifestation of hypertension as opposed to such a reading being more likely due to some other cause or factor. Second, the examiner should opine as to the relationship, if any, between the Veteran's hypertension and his service-connected diabetes mellitus. The examiner should provide an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's hypertension was either (a) proximately caused by or (b) proximately aggravated by his diabetes mellitus. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Additionally, aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the hypertension (i.e., a baseline) before the onset of the aggravation. A clear rationale for all opinions is required. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. To help avoid future remand, the RO must ensure that the required actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be taken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 2668 (1998). 5. Thereafter, readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).