Citation Nr: 1335649 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-01 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, to include as due to herbicide exposure, chemical exposure, or as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Veteran presented sworn testimony during a personal hearing at the Nashville RO, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. In January 2013, the Board remanded the Veteran's claim. The agency of original jurisdiction (AOJ) continued the previous denial of the claim for service connection for hypertension in a June 2013 supplemental statement of the case (SSOC). The AOJ also issued a statement of the case for the issue of entitlement to service connection for sleep apnea, as directed by the Board. The Veteran did not file a timely substantive appeal in response. Therefore, that issue is not before the Board. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 The Board remanded the Veteran's service connection claim in January 2013 in order for the Veteran to undergo an appropriate VA examination to determine whether it is at least as likely or not that his hypertension is related to his military service or is alternatively caused or aggravated by his service-connected diabetes. In determining whether his hypertension is related to his military service, the Board directed the VA examiner to specifically consider whether the Veteran's hypertension is related to his credible report of in-service exposure to chemicals including liquid oxygen. The Veteran's claim was to then be readjudicated. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's service connection claim. Specifically, the Veteran was afforded a VA examination in April 2013. After examination of the Veteran, the VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's hypertension is related to his military service. The examiner's rationale for their conclusion was based on their finding that the Veteran had normal blood pressure readings during service and was not treated for hypertension. Crucially, however, the examiner did not address the Veteran's exposure to chemicals during service, to include his exposure to liquid oxygen which as indicated above, the Board has found his report of such to be credible. Moreover, although the examiner determined that the Veteran's hypertension is not aggravated by the service-connected diabetes because the diabetes is well-controlled and has no renovascular condition, the examiner did not state whether it is at least as likely as not that the Veteran's diabetes caused his hypertension. In light of the foregoing, the Board finds that another remand for a VA medical nexus opinion is required for compliance with the January 2013 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Refer the case to the VA examiner who examined the Veteran in April 2013 for his hypertension (or suitable substitute if that examiner is unavailable). The examiner should review the entire claims folder and provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension is related to his credible report of exposure to chemicals including liquid oxygen during military service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is caused by his service-connected diabetes. The examiner should indicate in their report that the claims folder was reviewed and include the reasons behind any opinions expressed. If the examiner indicates that they cannot respond to the Board's questions without examination of the Veteran, such should be afforded to the Veteran. A report should be prepared and associated with the Veteran's VA claims folder. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).