Citation Nr: 1333554 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-37 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971 with service in the Republic of Vietnam from July 1970 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for hypertension and diabetic neuropathy. The Board Remanded the matter in June 2011 for further evidentiary development and has since returned for appellate consideration. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the claims file, the Board finds that further evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II (DM). The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of the appeal. The Board's June 2011 remand directed the AMC to obtain an addendum medical opinion that adequately addressed whether his hypertension was aggravated by his service-connected DM. The examiner had previously determined that the Veteran's hypertension was not caused by his DM because his DM was well-controlled. The AMC returned the claims file to the original May 2009 VA examiner who provided an addendum opinion in September 2011 that addressed the theory of secondary service connection under the theories of causation and aggravation. Unfortunately, in providing his negative opinion, the examiner only provided the rationale that the Veteran's blood sugars had been under excellent control, and that there was no evidence of end-organ damage. The significance of these findings and how it relates to the issue of secondary service for hypertension remained unexplained. The Board is prohibited from exercising its own independent judgment to resolve these medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Additionally, the examiner failed to address several key pieces of medical evidence that may or may not be favorable to the Veteran's claim. A June 2006 VA treatment record noted that the Veteran's diabetic neuropathy seemed to be worsening in conjunction with a finding of elevated blood pressure. A March 2009 VA treatment record shows that the Veteran had undiagnosed and untreated DM for probably 12 or more years prior to his 2005 diagnosis. An April 2010 VA treatment record noted that the Veteran had excess protein in his urine from his DM at the same time that his hypertension medication was increased. The Board is again unable to provide an opinion as to the clinical significance of these records/findings. As the May 2009/September 2011 VA examiner failed to address any of the above records or provide an adequate rationale for his conclusion that the Veteran's hypertension was not aggravated by his DM, the opinion of record is deemed inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The case must be remanded to obtain an addendum medical opinion. Additionally, new VA treatment records have been associated with the claims file since the June 2011 Board remand. Notably, a May 2011 VA peripheral nerves examination report noted that obtaining treatment records from the Veteran's 1995 private hospitalization at Research Hospital in Kansas City, Missouri and February 2005 private hospitalization in Aurora, Missouri would help determine whether the Veteran's cardiac issue was due to nonservice-connected hypothyroidism or service-connected DM. On remand, the Veteran should be asked to provide a signed release of information these and any other outstanding treatment records that he believes are relevant to the claim. Finally, as the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Fayetteville and Little Rock VA Medical Centers and any other VA facility identified by the Veteran should be obtained and added to the claims folder. All efforts to obtain such records must be documented in the claims file. 2. Contact the Veteran and ask him to provide a signed release of information for any outstanding treatment records from his 1995 hospitalization at Research Hospital in Kansas City, Missouri, and his February 2005 hospitalization in Aurora, Missouri, as well as any other private treatment records that he believes are relevant to his claim. If the Veteran returns a completed release of information, the AMC should obtain these records and associate them with the claims file. 3. Following completion of the above, return the Veteran's claims file to the original May 2009/September 2011 VA examiner, if possible, for another addendum opinion. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination, including any newly associated VA and/or private treatment records. This must be noted in the examination report. If the original May 2009/September 2011 examiner is unavailable, the Veteran's claims file should be provided to another appropriate examiner for review. The Veteran may be recalled for examination if deemed necessary. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed hypertension was caused or aggravated by his service-connected DM. He should explain clinical significance of why the Veteran's well-controlled diabetes mellitus and lack of end-organ damage is evidence against the finding of causation and/or aggravation. The examiner must also address (1) the June 2006 VA treatment record noting that the Veteran's diabetic neuropathy seemed to be worsening at the same time as a finding of elevated blood pressure, (2) the March 2009 VA treatment record indicating that the Veteran had undiagnosed and untreated DM for probably 12 or more years prior to his 2005 diagnosis, and (3) the April 2010 VA treatment record noting that the Veteran had excess protein in his urine from his DM at the same time that his hypertension medication was increased. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for hypertension, to include as secondary to service-connected DM, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ MICHAEL A. HERMAN 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 Court. 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).