Citation Nr: 1306949 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-00 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as due to exposure to herbicides, or in the alternative, claimed as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active military service from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (the Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in relevant part, denied the claim on appeal. The Veteran expressed disagreement with that determination and the present appeal ensued. In May 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in November 2011 when the Board denied the Veteran's claim. The Veteran appealed this portion of the Board's November 2011 decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated in November 2012, the Court vacated that part of the Board's November 2011 decision regarding the above stated issue and remanded the case to the Board for development consistent with an October 2012 Joint Motion for Remand (JMR). Also, in November 2011, the Board remanded several claims for further development. Because the Veteran appealed the Board's denial of the present claim to the Court, the development directed by the Board regarding the claims remanded in November 2011 has not been undertaken, and those claims have not been returned to the Board. Accordingly, the Board does not have jurisdiction over those claims at this time. Further, in January 2012, the Veteran filed claims to establish service connection for diabetic/stasis ulcer and neuropathy of the bilateral upper extremities, both claimed as secondary to service-connected diabetes mellitus, type II. While it appears that some development has been undertaken with respect to the claims, they have not been adjudicated by the Agency of Original Jurisdiction (AOJ), and thus, they are not properly before the Board at this time. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, these claims are referred to the AOJ for consideration in the first instance. 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 In the October 2012 JMR, the parties observed that the evidence of record, specifically, the Veteran's testimony at the May 2010 hearing, raised the matter of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type II. Since the Veteran's claim was not addressed by the Board under the theory of secondary service connection in November 2011, the claim has been returned to the Board so that this theory of entitlement may be considered. After the Board's denial of the Veteran's claim in November 2011, but before the October 2012 JMR, the RO afforded the Veteran VA examinations and obtained obtain opinions concerning whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. This additional, pertinent evidence has not been considered by the AOJ in the first instance, and such consideration has not been waived by the Veteran. 38 C.F.R. § 20.1304(c) (2012). Moreover, review of the April 2012 VA examination reports reflects that the clinician who conducted the examinations did not address whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus, type II, as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). Accordingly, the April 2012 VA examinations are inadequate for the purpose of adjudicating the Veteran's hypertension claim, and thus, the claim must be remanded. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, in January 2012, the Veteran asserted that he received private treatment for hypertension and diabetes mellitus, type II, from the St. Vincent Infirmary Medical Center in 1988 and 1989. He submitted a release for the RO to obtain these records in May 2012. While the RO attempted to obtain these records in June 2012, a July 2012 response from this facility reflects that no such records were on file. Since this claim must be remanded for other matters, and in light of the forthcoming changes to 38 U.S.C.A. § 5103A(2)(B), the RO should make another attempt to obtain these reasonably identified records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his hypertension and diabetes mellitus, type II, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. The Board is particularly interested in the any records from the St. Vincent Infirmary Medical Center dated from 1988 to 1989. After obtaining completed VA Forms 21-4142, the RO should attempt to obtain all identified pertinent medical records, and associate them with the claims file, to include updated VA records from the Central Arkansas Veterans Healthcare System John L. McClellan Memorial Veterans Hospital in Little Rock, Arkansas, dated from December 23, 2011, to the present. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to locate this evidence, the records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; (c) any further action to be taken by VA with respect to the claim must be noted; and (d) the Veteran must be informed that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, refer the Veteran's claims file to the clinician who conducted the April 2012 VA examinations or, if he is unavailable, to another suitably qualified VA medical professional, for a clarifying opinion concerning the etiology of the Veteran's hypertension. The examiner must be given full access to the record, to include any records which may be obtained and associated with the Veteran's Virtual file in connection with the prior remand directives. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Thereafter, the clinician must provide an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension was aggravated by his service-connected diabetes mellitus, type II. Any opinion(s) expressed should be accompanied by a complete rationale. 3. Thereafter, readjudicate the issue on appeal, to include as secondary to service-connected disability, considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. 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). 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). _________________________________________________ U.R. POWELL 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).