Citation Nr: 1605527 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-34 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for an eye disability, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The appellant served on active duty from February 1966 to February 1970, including service in the Republic of Vietnam from September 1967 to October 1968. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of a special processing unit known as the Tiger Team at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appellant's claim was subsequently transferred to the jurisdiction of the RO in Pittsburgh, Pennsylvania. The Board remanded the case for further development in August 2012 and, most recently, in October 2014. The case has since been returned for appellate review. As discussed below, there has not been substantial compliance with the remand instructions and further development is necessary, so the matter must be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran's appeal originally included claims for service connection for coronary artery disease and peripheral neuropathy of the right and left upper extremities. However, the RO granted those claims in August 2015 and November 2015 rating decisions. Therefore, they are no longer on appeal, and no further consideration is necessary. As noted in the Board's October 2014 remand, the issues of earlier effective dates for the grant of service connection for peripheral neuropathies of the right and lower extremities were raised by the record in the Veteran's October 2014 brief. Despite the Board's prior referral of those issues, they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they again are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2014, the Board remanded this matter with instructions to obtain medical opinions regarding the etiology of the Veteran's hypertension. Specifically, the examiner was asked to opine: "[W]hether it is at least as likely as not that hypertension was either caused by or permanently aggravated by the Veteran's service-connected diabetes mellitus. In rendering this opinion, the examiner should address the contentions and medical literature submitted by the Veteran's representative in October 2014." The RO obtained opinions with respect to the etiology of the Veteran's hypertension in April 2015. However, the examiner failed to provide a rationale for his conclusions, particularly with respect to aggravation, and he did not address the contentions and medical literature submitted by the Veteran's representative in October 2014. The Veteran's representatives provided additional references to relevant medical literature in a December 2015 Written Brief Presentation. The matter must be remanded to obtain an adequate opinion and to ensure compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In addition, the AOJ granted service connection for coronary artery disease (CAD) in a November 2015 rating decision. The examiner should also address whether the CAD caused or aggravated the Veteran's hypertension. The record also fails to contain an adequate opinion with respect to the claimed eye condition. While the Veteran was provided an October 2012 VA examination, the examiner merely stated a conclusion without setting forth any facts or medical principles supporting the briefly stated conclusion. Of particular concern, the VA examiner failed to address the well-known correlation between diabetes and cataracts, a correlation which the Veteran's representative has noted with reference to relevant medical literature. See December 2015 Written Brief Presentation. The examiner should address the Veteran's medical theory and the relevant medical literature. Where VA has undertaken to provide an examination, the examination and resulting opinions must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, the case is REMANDED for the following action: 1. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) should be reviewed by a suitably qualified VA examiner for a clarifying opinion as to the etiology of the Veteran's hypertension. A new examination is not required, unless it is deemed needed. After reviewing the record and performing any examination and/or testing of the appellant deemed necessary, the examiner should address the following: a. Is it at least as likely as not that that the Veteran's hypertension is causally or etiologically related to his military service, including conceded exposure to herbicide agents (e.g. Agent Orange)? b. If the answer to (a) is negative, is it at least as likely as not that his hypertension was either caused by or permanently aggravated by his service-connected disabilities, including diabetes mellitus and coronary artery disease. In rendering this opinion, the examiner must address the contentions and medical literature submitted by the Veteran's representative in October 2014 and in December 2015 (i.e., that hypertension commonly occurs in diabetics without abnormal renal function). The examiner must provide a complete rationale for any opinion provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should explain why an opinion cannot be made without speculating. 2. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) should be reviewed by a suitably qualified VA examiner for a clarifying opinion as to the etiology of the Veteran's bilateral cataracts. A new examination is not required, unless it is deemed needed. After reviewing the record and performing any examination and/or testing of the appellant deemed necessary, the examiner should address the following: a. Is it at least as likely as not that that the Veteran's bilateral cataracts are causally or etiologically related to his military service, including conceded exposure to herbicide agents (e.g. Agent Orange)? b. If the answer to (a) is negative, is it at least as likely as not that the Veteran's bilateral cataracts were either caused by or permanently aggravated by the Veteran's service-connected diabetes mellitus. In rendering this opinion, the examiner must address the contentions and medical literature submitted by the Veteran's representative in October 2014 and in December 2015. The examiner must provide a complete rationale for any opinion provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should explain why an opinion cannot be made without speculating. 3. Then, readjudicate the issues on appeal. If either of the issues remains denied, provide the appellant with a supplemental statement of the case and allow an appropriate time for response before returning the case to the Board. 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 2014). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).