Citation Nr: 1342664 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-25 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II (DM II) and coronary artery disease (CAD). 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1967 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for hypertension, but granted service connection for DM II associated with herbicide exposure and service connection for CAD. In June 2013, the Veteran testified at a travel board hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing is contained in the electronic records maintained in the Virtual VA system. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. 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 VA Examination In May 2009, the Veteran underwent a VA diabetes mellitus examination in which the VA examiner noted that the Veteran was diagnosed with hypertension a few years earlier and with DM II, approximately ten years earlier. The VA examiner diagnosed cardiovascular disease and peripheral edema. The examiner stated that hypertension was a complication of peripheral edema, but that hypertension was not a complication of diabetes, because there was no evidence of nephropathy. Although the May 2009 VA examiner's opinion addressed whether hypertension was a result of DM II, the examiner did not address whether the Veteran's hypertension was aggravated by his now service-connected DM II. Nor did the May 2009 VA examiner address whether the Veteran's hypertension was related to service on a direct basis, to include in-service exposure to herbicides while in Vietnam. Consequently, the Board finds that the VA examiner's medical opinion is inadequate and that remand is necessary to obtain a new VA examination with an appropriate medical opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Veteran has also contended in his notice of disagreement (NOD) in November 2009, that his hypertension is secondary to his now service-connected CAD. Since no medical professional has provided any opinion indicating that the Veteran's hypertension may be secondary to his service-connected coronary artery disease, an opinion regarding a relationship between hypertension and coronary artery disease should also be obtained. Treatment Records The Veteran stated at his June 2013 travel board hearing that he continues to receive treatment for his hypertension from Dr. G., his private physician. On remand, VA should contact the Veteran and have him complete the proper release forms, and then obtain the complete and updated treatment records from Dr. G., as well as any other private facilities where he has received treatment. The record also reflects that the Veteran had been receiving regular treatment from the VAMC Deerfield Beach CBOC. The most recent VA treatment records date back to June 2013. Based on the Veteran's apparent ongoing treatment, updated VA treatment records, from June 2013 to present, if they exist, should be associated with the claims file. Statement of the Case In a June 2011 rating decision, the RO denied service connection for sleep apnea. The Veteran filed a notice of disagreement (NOD) in June 2011. By filing a timely NOD with the June 2011 rating decision, the Veteran has initiated appellate review on the issue therein decided. The RO has yet to issue a statement of the case (SOC) with respect to the claim for service connection for sleep apnea. When a notice of disagreement has been filed, an SOC must be issued. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). The Board is therefore obligated to remand this issue for the issuance of a SOC. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of complete records from Dr. G., as well as any other private facilities where he has received treatment. After obtaining the completed VA Form 21-4142, VA should attempt to obtain these records not already associated with the claims file. 2. Obtain updated VA treatment records from the VAMC Deerfield Beach CBOC and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of June 2013 to the present. 3. Schedule the Veteran for a VA hypertension examination to determine the nature and etiology of the Veteran's hypertension. The complete claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder and in VBMS) must be reviewed in conjunction with the examination, and the examiner must clearly state that such was accomplished. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed. The examiner should address the following: (A) The examiner should provide an opinion as to whether it at least as likely as not (a probability of 50 percent or greater) that currently diagnosed hypertension had its onset in active duty service, to include his presumed exposure to herbicides in the Republic of Vietnam. The examiner should specify, to the extent possible, the date of onset of hypertension, if not during service. (B) The examiner should also provide an opinion as to whether it at least as likely as not that currently diagnosed hypertension was caused or aggravated (worsened beyond the natural progression) by the Veteran's service-connected DM II , CAD or any other service-connected disabilities. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected DM II, CAD or any other service-connected disabilities. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. 4. Issue an SOC with respect to the claim for service connection for sleep apnea. The Veteran is advised that a timely substantive appeal will be necessary to perfect the appeal to the Board concerning the issue. 38 C.F.R. § 20.302(b) (2012). Then, only if the appeal is timely perfected, the issue is to be returned to the Board for further appellate consideration, if otherwise in order. 5. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded 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. 2013). _________________________________________________ MILO H. HAWLEY 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).