Citation Nr: 1620015 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 10-09 281 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type 2 diabetes mellitus. 2. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected type 2 diabetes mellitus. 3. Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1969 to April 1971, to include service in Vietnam from June 1970 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that, in pertinent part, denied service connection for hypertension, to include as secondary to service-connected type 2 diabetes mellitus. After the decision was entered, the case was transferred to the jurisdiction of the RO in Indianapolis, Indiana. In March 2010, the Veteran requested a Board hearing at the RO. However, he later withdrew the request in July 2010, when he and his spouse appeared at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the DRO hearing has been associated with the record. In November 2014, the Board remanded the Veteran's hypertension claim to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In March 2016, the Veteran filed a notice of disagreement (NOD) with regard to a May 2015 rating decision insofar as the RO denied service connection for chronic kidney disease, to include as secondary to service-connected type 2 diabetes mellitus, and also denied a rating in excess of 20 percent for type 2 diabetes mellitus. Thus far, he has not been furnished a statement of the case (SOC) with respect to those issues. See, e.g., 38 C.F.R. § 19.29. This matter is discussed in further detail, below. The Board notes that this appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. In April 2016, the Board granted a motion, filed by the Veteran's representative, to advance the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c). For the reasons set forth below, this case is being REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran specifically recalls undergoing a VA examination for nephropathy on March 13, 2015, at the VA Medical Center (VAMC) in Marion, Indiana, by a VA examiner with the last name of Siddiqui. See NOD dated March 16. Although the record contains a report of a VA nephrology examination dated March 12, 2015, by a VA examiner with the last name of Malott, it does not contain a report that corresponds to the Veteran's recollection (and which appears to be corroborated by entries in his VA online Personal Health Record in Myhealthevet). This needs to be investigated. In February 2015, the Veteran reported that he had received additional, relevant treatment from Jay H. Weiss, M.D., on December 5, 2014. He has also reported receiving additional, relevant treatment from a Dr. Christian Verhagen subsequent to June 2008 (when complete records from Dr. Verhagen were last procured). Because the records of such treatment, if obtained, could contain information bearing on the outcome of the Veteran's appeal, efforts should be made to procure them. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). When this case was remanded in November 2014, the Board asked the AOJ, among other things, to have the Veteran examined for purposes of obtaining an opinion as to the likely etiology of his hypertension. The examiner was to offer an opinion with respect to whether hypertension had its onset in, or was etiologically related to, service, to include in-service exposure to herbicides, and, if such a relationship was unlikely, whether hypertension was caused or aggravated by service-connected diabetes mellitus. In doing so, the examiner was to presume that the Veteran was exposed to herbicides during service and provide a complete rationale for the opinion(s) expressed. The record reflects that the Veteran was examined in February 2015, as requested in the remand, and that an unfavorable opinion was obtained. However, the examiner did not provide an express opinion as to the likelihood that hypertension could be attributed to in-service exposure to herbicides, separate and apart from any association it might have with diabetes mellitus. In addition, although the examiner opined that it was unlikely that the Veteran's hypertension had been caused or aggravated by diabetes mellitus because there was no evidence of abnormal kidney function on the current examination, the examiner did not reconcile that conclusion with prior reports from a Dr. Verhagen, dated in September 2004, reflecting a finding of "trace" protein in the Veteran's urine; an August 2006 report from Dr. Verhagen, reflecting a finding of glucose in the Veteran's urine; an August 2008 VA examination report, wherein a VA examiner indicated that "with mere speculation," he could say the Veteran's hypertension was related to his diabetes mellitus; and reports from a Dr. Weiss, dated from June to August 2014, indicating that the Veteran had "stage 3" chronic kidney disease, that he likely had a diabetic nephropathy accounting for his proteinuria, and that he most likely had a component of analgesic nephropathy that might be playing a role in his hypertension. Nor did the examiner reconcile his opinion with that of the Veteran's spouse (a registered nurse), who has stated her belief that the Veteran's diabetes has made his blood pressure more difficult to control. As such, a new examination is necessary. Records of the Veteran's treatment through the VAMC in Marion, Indiana were last procured for association with the record on August 27, 2015. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As discussed above, the Veteran has filed a timely NOD with respect to the matter of his entitlement to service connection for chronic kidney disease, to include as secondary to service-connected type 2 diabetes mellitus, and to a rating in excess of 20 percent for diabetes. See Introduction, supra. To date, no SOC as to those issues has been furnished. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant files a timely NOD as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the issue for the issuance of an SOC. Finally, the Board notes that the Veteran's claim for service connection for hypertension is inextricably intertwined with his pending appeal with respect to service connection for chronic kidney disease. As such, any necessary AOJ action on the claim for service connection for chronic kidney disease should be completed prior to readjudication of the hypertension claim. For the reasons stated, this case is REMANDED for the following actions: (Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to provide releases for relevant records of treatment from Drs. Weiss (dated December 5, 2014) and Verhagen (dated since June 2008), and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to his hypertension claim. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. 2. Ask the Marion VAMC to clarify whether the VA examination recorded in the Veteran's VA online Personal Health Record in Myhealthevet as having been conducted on March 13, 2015, by a VA examiner with the last name of Siddiqui is the same report that appears in the record as having been conducted on March 12, 2015, by a VA examiner with the last name of Malott. If it is not the same report, arrange to have the missing report from examiner Siddiqui associated with the record. 3. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VAMC in Marion, Indiana since August 27, 2015, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination by a physician. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that Veteran's hypertension had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include his presumed exposure to herbicides in Vietnam. If it is the examiner's opinion that it is unlikely that the Veteran's hypertension had its onset in, or is otherwise attributable to, service, to include his presumed exposure to herbicides in Vietnam, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been caused or aggravated by the Veteran's service-connected diabetes mellitus and/or ischemic heart disease, to include medication therefor. In so doing, the examiner should consider and discuss the reports from a Dr. Verhagen, dated in September 2004, reflecting a finding of "trace" protein in the Veteran's urine; an August 2006 report from Dr. Verhagen, reflecting a finding of glucose in the Veteran's urine; an August 2008 VA examination report, wherein a VA examiner indicated that "with mere speculation," he could say the Veteran's hypertension was related to his diabetes mellitus; reports from a Dr. Weiss, dated from June to August 2014, indicating that the Veteran had "stage 3" chronic kidney disease, that he likely had a diabetic nephropathy accounting for his proteinuria, and that he most likely had a component of analgesic nephropathy that might be playing a role in his hypertension; and the reports of VA examinations and opinions dated in February and March 2015, to the effect that it is unlikely that the Veteran's hypertension can be attributed to service or service-connected diabetes mellitus. The examiner should also consider and discuss the opinion offered by the Veteran's spouse (a registered nurse), who has stated her belief that the Veteran's diabetes has made his blood pressure more difficult to control, and the articles submitted by the Veteran's representative in March 2016. A complete medical rationale for all opinions expressed must be provided. 5. Unless the claim is resolved by granting the benefits sought, or the NOD is withdrawn, furnish an SOC to the Veteran and his representative, in accordance with 38 C.F.R. § 19.29, concerning the matter of the Veteran's entitlement to service connection for chronic kidney disease, to include as secondary to service-connected type 2 diabetes mellitus, and to a rating in excess of 20 percent for diabetes. Those issues should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's hypertension claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC (SSOC). An appropriate period of time should be allowed for response. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the record should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2015).