Citation Nr: 1338074 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-37 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to diabetes mellitus. 2. Entitlement to service connection for a back disability. WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Appellant had active duty service from November 1965 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. A Travel Board hearing in front of the undersigned Veterans Law Judge was held in July 2008. A transcript of the hearing has been associated with the claim file. The claim was previously remanded in November 2008 and November 2010. The issues of entitlement to service connection for peripheral neuropathy of the right upper extremity and headaches were the subject of the prior remands. However, since then, service connection for these disabilities has been established. Therefore, the issues are no longer before the Board. The Board sent the Veteran a letter in May 2010 requesting clarification of the Veteran's representation in this matter. There was a question of whether either the Veterans of the Vietnam War, Inc. or the Disabled American Veterans represented him. In this letter the Veteran was advised to identify his representative within 30 days and if the Board did not hear from him, then it would proceed as if he were unrepresented. No response was received from the Veteran or either Veterans of the Vietnam War, Inc. or the Disabled American Veterans, who were copied on the letter. Although correspondence appears to have subsequently been issued to and from Disabled American Veterans in regard to the claims on appeal, the Board is unable to locate any 21-22, Appointment of Veterans Service Organization, dated since the May 2010 letter. Accordingly, the Board will proceed as if the Veteran were unrepresented as only one representative may be recognized at one time. However, as this case is being remanded for further development, the Board will instruct the agency of original jurisdiction to provide the Veteran another opportunity to clarify whether he wishes to have representation. The Board has reviewed the Veteran's Virtual VA file and has considered the records contained therein. 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 Veteran seeks service connection for a back disability and hypertension, to include as due to diabetes mellitus. After a review of the claim file, the Board finds that additional development is needed prior to deciding the claim. The Veteran has been afforded VA examinations regarding the claimed disabilities. Unfortunately, the Board finds the opinions are inadequate and new opinions are needed. Regarding hypertension, the Veteran has alleged that it is due to Agent Orange exposure or in the alternative, was aggravated by the service connected diabetes mellitus. The Veteran had service in the Republic of Vietnam and as such, exposure to Agent Orange is conceded. An opinion as to whether hypertension was caused by exposure to Agent Orange has not been obtained. This opinion should be obtained. Moreover, in regards to a relationship to diabetes mellitus, the January 2011 VA examiner opined that hypertension was not caused or aggravated by diabetes mellitus as it predated the diabetes diagnosis and it is currently well controlled. The Board finds this opinion to be inadequate as to aggravation. Indeed, both private and VA outpatient treatment records clearly document that the Veteran's hypertension was, at numerous times throughout the years and after the diabetes mellitus diagnosis, still uncontrolled and his medication had to be adjusted several times in order to finally maintain the hypertension controlled. The examiner did not discuss the significance, if any, of the uncontrolled hypertension after the diabetes diagnosis or the need for an increase in medication. Therefore, the opinion is not based on an adequate factual basis and a new opinion is needed. Regarding the back disability, the Board also finds that the VA medical opinion of January 2011 is inadequate. Indeed, the examiner notes a history of back disability from 1995 to 2000. However, post service treatment records show complaints of back problems as early as 1980. There is a 15 year history of the disability that the examiner does not seem to have considered. Moreover, the examiner did not address the Veteran's reports of continuity of symptomatology. Consideration of the Veteran's reports of continuity of symptomatology is particularly important in light of the fact that the Veteran has submitted numerous lay statements which state the Veteran had back problems since returning from serving in Vietnam. Therefore, a new opinion is needed. As explained in the Introduction, the Veteran was sent a letter in May 2010 requesting clarification of who he wished to represent him in this matter. There was a question of whether either the Veterans of the Vietnam War, Inc. or the Disabled American Veterans represented him. In this letter the Veteran was advised to identify his representative within 30 days and if the Board did not hear from him, then it would proceed as if he were unrepresented. No response was received from the Veteran or the service organizations. Although correspondence appears to have subsequently been issued to and from Disabled American Veterans in regard to the claims on appeal, the Board is unable to locate any 21-22, Appointment of Veterans Service Organization, dated since the May 2010 letter. While this case is in remand status, the Veteran should be given another opportunity to clarify whether he wishes to have representation. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice and explanation that he is not currently represented. He should be given appropriate forms to appoint a Veterans Service Organization, attorney, or agent to represent him in this appeal. 2. The RO/AMC should return the claim file to the January 2011 VA examiner to obtain an addendum to the opinion provided as to the etiology of hypertension. The examiner should be given access to the Veteran's Virtual VA file. The examiner must state that a review of the paper and Virtual files was conducted. The examiner must provide the following opinions: (i) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current hypertension is due to service to include exposure to Agent Orange? (ii) Is it at least as likely as not (i.e., 50 percent or more probable) that current hypertension is chronically aggravated or worsened by his type II diabetes mellitus, beyond the natural progress of the disease, regardless of the date of onset of either disorder? If and only if the examiner believes that there is chronic aggravation or worsening of his hypertension by his type II diabetes mellitus, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate. The examiner should specifically consider the well documented treatment for hypertension after diabetes mellitus was diagnosed, showing that hypertension was uncontrolled and required an increase in medication several times throughout the years. (iii) In making the above determinations, the examiner must clearly explain the rationale for his opinion(s). The examiner must discuss the Veteran's lay contentions, the particular facts of the Veteran's case, and must also identify what specific "medical literature" he references, if any. The examiner is reminded that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. 3. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any current back disability. The examiner must be given access to the Veteran's Virtual VA file and the report must state the paper and claim files were considered. The examiner must elicit a detailed history of the condition from the Veteran and clearly document it in the examination report. The examiner is informed that the record reflects that the Veteran sought treatment for back problems as early as 1980. After a review of the paper and Virtual files, and an examination of the Veteran, the examiner must opine as to whether it at least as likely as not (i.e., 50 percent or more probable) that any current back disability is due to service to include the complaints of back pain in 1967 in service. A complete rationale for any opinion rendered must be provided. The examiner must discuss the Veteran's lay contentions and the supporting lay statements contained in the record, the particular facts of the Veteran's case, and must also identify what specific "medical literature" he references, if any. The examiner is reminded that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. 4. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the RO/AMC must consider all of the evidence of record, including any records on the Virtual VA paperless claims processing system, and readjudicate the service connection claim for hypertension and aback disability. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Appellant an opportunity to respond. 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). _________________________________________________ MICHAEL LANE 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).