Citation Nr: 1418978 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 08-35 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a heart disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Maria Chesteron, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1973 and from November 1990 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the file. 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 While further delay is regrettable, the Board finds that additional development is needed. The Veteran now appears to contend that his claimed conditions are the result of his service connected PTSD. Secondary service connection may be established when a service-connected disability proximately causes a nonservice-connected disability or aggravates a nonservice-connected disability. Specifically, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. A temporary or intermittent flare-up of a preexisting condition does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The Veteran should be issued notice pursuant to the Veterans Claims Assistance Act (VCAA) concerning the information and evidence needed to substantiate his claimed disabilities as secondary to PTSD. An additional medical opinion is needed as to this theory of entitlement, as well as a clarifying opinion concerning hypertension. Specifically, the June 2011 heart examiner noted the April 9, 1991 service treatment record revealed a blood pressure reading of 145/85. However, that report is not entirely clear, and could arguably be read as 195/85. A clarifying opinion as to whether such a reading changes the examiner's opinion regarding hypertension is necessary. Relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter, that advises him of the information and evidence necessary to establish service connection for his diabetes, hypertension and heart disease as secondary to his service-connected PTSD. 2. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have treated him for diabetes, heart condition, and hypertension. After securing the necessary release, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Return the claims file to the examiner who conducted the June 2011 VA heart examination, if available, for an addendum opinion. If the examiner determines an additional examination is necessary, such should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to respond to this request. Following review of the claims file, the examiner should respond to the following: a. Assuming for the sake of argument that the April 9, 1991 blood pressure reading is 195/85 (rather than 145/85) does that change your opinion that the Veteran's hypertension did not have its onset in service or within one year thereafter? Please explain why or why not. b. Is it is at least as likely as not (50 percent probability or greater) that the Veteran's heart disease and/or hypertension was caused by his service-connected PTSD. Please explain why or why not. c. If not caused by the Veteran's PTSD, please provide an opinion as to whether the Veteran's PTSD has permanently worsened his heart disease and/or hypertension beyond the normal progression of those diseases (as opposed to a temporary exacerbation of symptoms). If the heart disease and/or hypertension have been permanently worsened beyond normal progression (aggravated), the examiner should attempt to quantify the degree of aggravation beyond the baseline level of the diseases. The rationale for any opinion should be set forth. 4. Return the claims file and the June 2011 VA diabetes examiner, if available, for an addendum opinion. If the examiner determines an additional examination is necessary, such should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to obtain the requested opinion. Following review of the claims file, the examiner should respond to the following: a. Is it is at least as likely as not (50 percent probability or greater) that the Veteran's diabetes mellitus was caused by his service-connected PTSD. Please explain why or why not. b. If not caused by the Veteran's PTSD, please provide an opinion as to whether the Veteran's PTSD has permanently worsened his diabetes mellitus beyond the normal progression (as opposed to a temporary exacerbation of symptoms). If the diabetes mellitus has been permanently worsened beyond normal progression (aggravated), the examiner should attempt to quantify the degree of aggravation beyond the baseline level of the disease. The rationale for any opinion should be set forth. 5. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ K. A. BANFIELD 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).