Citation Nr: 1332784 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-23 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as aggravated by service-connected type II diabetes mellitus. 2. Entitlement to service connection for a cervical and lumbar spine disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2009, the Veteran testified before a Decision Review Officer (DRO) at the Muskogee RO. In May 2011, he testified at a videoconference hearing before the undersigned Veterans Law Judge. Hearing transcripts are associated with the record. In January 2013, the Board remanded the case. It has been returned to the Board for disposition. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 The Board remanded this case in January 2013 for additional evidentiary development. There has not been substantial compliance with the remand directives and, therefore, the issues on appeal require remand. Stegall v. West, 11 Vet. App. 268 (1998) (Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance). First, although the AMC sent to the Veteran a letter dated in March 2013 requesting information pertaining to outstanding treatment records as required by the Board's January 2013 remand, the AMC apparently sent the letter to an incorrect address as noted by the Veteran's representative in his appeal brief dated in September 2013. The Board observes that the AMC's March 2013 letter was not returned as undeliverable, but acknowledges that the mailing address is different from the address of record and utilized by VA both prior to and after March 2013. As such, to ensure VA has met its duty to assist the Veteran, the AMC should reissue the March 2013 letter and resend the letter to his current address of record. Second, the Board directed in January 2013 that the AMC obtain all VA treatment records dated since August 2010. However, the record shows that the records were not requested from this date, but rather VA treatment records were requested from December 9, 2010. As such, to ensure VA has met its duty to assist the Veteran, the AMC should request pertinent VA treatment for the period of time from August 2010 to December 9, 2010. See 38 C.F.R. § 3.159. Third, the Board instructed in January 2013 that the AMC obtain a VA examination with a medical opinion on whether it is at least as likely as not that hypertension is (1) causally or etiologically related to the Veteran's military service, to include herbicide exposure therein, or (2) casually or etiologically related to his service-connected type II diabetes mellitus. The Board asked that the examiner acknowledge and discuss Dr. K's July 2008 statement and opinion. An opinion aggravation was also requested. A Disability Benefits Questionnaire (DBQ) dated in April 2013 reflects an examination of the Veteran and includes a medical opinion. However, after reviewing the medical opinion and rationale, the Board finds that it is unclear and incongruous. The opinion reads, in part, as follows: I conclude, after a review of medical records, taking a history, and performing a physical examination, the hypertension is less than likely not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge and is at least as likely as not permanently aggravated or a result of any event in service and was not caused by an/or worsened by already service connected disability, i.e. Diabetes mellitus, Type II. Also, the medical rationale for the opinion does not adequately explain the basis for the opinion, and the examiner neglected to discuss the favorable medical opinion of Dr. K that the Veteran's hypertension is "as likely as not linked to [his] agent orange exposure." When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet.App. 102, 124-25. "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). Accordingly, the case is REMANDED for the following action: 1. Resend the March 2013 AMC letter pertaining to outstanding treatment records to the correct address. Again, the Veteran should provide separate written releases for each provider. If any records identified cannot be obtained, the RO/AMC should notify the Veteran and his representative of such and describe the efforts taken to obtain them. 2. Request all pertinent VA treatment records for the period from August 2010 to December 9, 2010, along with all updated VA treatment records dated since February 2013. 3. Thereafter, the DBQ dated in April 2013 should be returned to the examiner for an addendum to clarify and explain the opinion and supporting rationale. The Veteran's claims file, to include any pertinent records located in the Veteran's electronic file, must be made available to the examiner for review in connection with addendum. The examiner must provide written responses to the following inquiries: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is: (i) causally or etiologically related to his military service, to include herbicide exposure therein, or (ii) casually or etiologically related to his service-connected type II diabetes mellitus. (b) Is it at least as likely as not that the Veteran's hypertension is aggravated (permanently worsened beyond normal progression and not a temporary flare-up or worsening) by the Veteran's service-connected diabetes mellitus. If aggravation is found, to the extent practicable, the examiner should indicate a baseline of symptomatology and the aggravation of such symptomatology by service-connected type II diabetes mellitus. The examiner must comment and or discuss Dr. K's July 2008 statement and opinion that the Veteran's hypertension is "as likely as not linked to [his] agent orange exposure." A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. 4. After completing these actions, the RO/AMC should conduct any other development necessary and as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. This should include obtainment of an addendum opinion from the February 2010 VA spine examiner pertaining to the etiology of the claimed cervical and lumbar spine disabilities if indicated by any additional evidence received. 5. Thereafter, the RO/AMC should readjudicate the claims based on the entirety of the evidence. If the benefits sought on appeal are not granted, 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 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. 2013). _________________________________________________ DAVID L. WIGHT 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) (2013).