Citation Nr: 1338812 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 04-14 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1985 to May 1992, from August 1997 to April 1998, and from March 2003 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal following March 2003 and April 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). The Veteran testified at an October 2006 videoconference hearing held by the undersigned, a transcript of which is associated with the claims file. The Board denied service connection for hypertension and diabetes mellitus in September 2012. However, that decision was vacated by a United States Court of Appeals for Veterans Claims (Court) order in May 2013, and the matters were remanded to the Board by that Court order, which granted a May 2013 joint motion for remand. 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 May 2013 joint motion for remand indicates that the Board failed to provide adequate reasons or bases in support of its finding that clear and unmistakable evidence established that the Veteran's hypertension and diabetes mellitus were not aggravated during service. It notes that in finding clear and unmistakable evidence of no aggravation, the Board placed significant probative value on a May 2011 VA examination report. It further notes, however, that the Board mischaracterized the examiner's findings by stating that she opined that the disabilities were not aggravated by service. The May 2011 VA examiner actually opined that it was less likely than not that the Veteran's hypertension and diabetes mellitus were aggravated during the Veteran's 3rd period of service beyond their natural progression. The joint motion concluded that the Board erred in misstating the definitiveness of the examiner's opinion, and that the Board failed to explain how the less likely than not language in the examiner's opinion could rise to the level of clear and unmistakable evidence. It found that the examiner's language was equivocal and did not satisfy the clear and unmistakable evidence standard. Moreover, the joint motion noted that the February 2011 remand by the Board conferred on the Veteran the right to compliance with the remand instructions. It noted that in the Board's February 2011 remand, the Board determined that an April 2010 VA examiner failed to address elevated blood pressure readings in December 1998 and February 1999 with respect to whether it is at least as likely as not that the Veteran's hypertension was manifest to a compensable degree within 1 year of the period of service ending in April 1998; and that during the ensuing May 2011 VA examination on remand, the examiner again failed to discuss the December 1998 and February 1999 blood pressure readings in her rationale. As such, the parties agreed that the Board was required to remand for a VA examination to provide an adequate opinion on whether the December 1998 and February 1999 elevated blood pressure readings evidence a manifestation of hypertension to a compensable degree within 1 year of the period of service which ended in April 1998. In light of the joint motion, remand action is required. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA physician for a medical opinion, with examination only if deemed necessary, and ask that he or she review the claims file. Thereafter, the physician should state: a. Is it at least as likely as not (i.e., probability of 50 percent) that hypertension was manifest to a compensable degree (if diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more or there is a history of diastolic pressure predominantly 100 or more and continuous medication is required for control) within one year of discharge from active duty in April 1998? The examiner should specifically discuss whether the December 1998 and February 1999 blood pressure readings evidence a manifestation of hypertension to a compensable degree within 1 year after the period of service which ended in April 1998; b. Does the evidence render it undebatable from a medical standpoint that the Veteran's hypertension was not aggravated (meaning chronically worsened or permanently increased in severity) during his third period of active military service (March 2003-February 2004) beyond its natural progression? A medical opinion using the "undebatable from a medical standpoint" language, rather than "more likely than not", "at least as likely as not", or "less likely than not" language, must be rendered. c. Does the evidence render it undebatable from a medical standpoint that diabetes mellitus was not aggravated (meaning chronically worsened or permanently increased in severity) during his third period of active military service (March 2003-February 2004) beyond its natural progression? A medical opinion using the "undebatable from a medical standpoint" language, rather than "more likely than not", "at least as likely as not", or "less likely than not" language, must be rendered. A complete rationale should be provided for all opinions expressed, citing to service and postservice treatment records as appropriate. 2. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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). _________________________________________________ M. C. GRAHAM Acting 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).