Citation Nr: 1621956 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 12-33 382A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO in Montgomery, Alabama, certified the claim. The Board has reviewed the contents of the Veteran's electronic Virtual VA and Veterans Benefit Management System (VBMS) claims files. The Veteran testified at an April 2013 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's Virtual VA file. In January 2015, the Board remanded the matter for additional development. While the Board sincerely regrets the delay, additional development is required to satisfy VA's duty to assist the Veteran. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for hypertension, which he states was caused or aggravated by his service-connected diabetes mellitus, type II. In this case, a remand is necessary to ensure compliance with the Board's January 2015 remand. See Stegall v. West, 11 Vet. App. 269, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). The Veteran was afforded a VA examination in August 2010, during which he was diagnosed with diabetes mellitus and hypertension. At that time, the Veteran reported a diagnosis of each of these conditions in 1999. The examiner attributed certain disabilities to the diabetes mellitus, but as to the hypertension indicated that an etiology opinion was not requested. An October 2010 letter from Dr. V.B., the Veteran's former private physician, clarified that the Veteran actually was diagnosed with diabetes mellitus in 2002 and that his blood pressure was normal at that time. He subsequently was diagnosed with hypertension in November 2006, at which time he was started on medication. In a May 2013 letter, the same private physician stated, "[The Veteran] was diagnosed with diabetes in 2002. Then in 2006 he developed hypertension. There is likely a connection between these two medical problems." The letter, however, provided no rationale for the opinion provided. In January 2015, the Board remanded the matter for additional development. In that remand, the Board requested a medical opinion as to whether the Veteran's hypertension was at least as likely as not caused or aggravated by his service-connected diabetes mellitus. The clinician was notified of both the October 2010 and May 2013 letters from the private physician, including the opinion that there was "likely a connection" between the diabetes and hypertension. The clinician was also asked to provide an opinion as to whether the hypertension was directly etiologically related to service, and was asked to consider the 2006 conclusion of the National Academy of Sciences (NAS) that found "limited or suggestive evidence of an association" between herbicide exposure and hypertension. In February 2015, a clinician reviewed the claims file and provided the opinion that the hypertension was less likely than not etiologically related to service because there "is currently no well-documented medical evidence establishing a causal relationship between hypertension and herbicide exposure." The clinician did not address the 2006 conclusion of NAS. The clinician also did not offer a rationale for the opinion that hypertension was not otherwise etiologically directly related to service, noting only that the "Veteran separated from service in 1970 and hypertension was diagnosed around 2006." The clinician also provided the opinion that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus. The rationale, however, again states that there "is currently no well-documented medical evidence establishing a causal relationship between hypertension and herbicide exposure." The clinician opined that the May 2013 private physician's letter noting a likely connection referred to hypertension and diabetes mellitus coexisting, but did not infer a causal relationship between the two. While the clinician noted that, in the absence of renal disease, hypertension is not a usual complication of diabetes mellitus, and further noted that the Veteran had normal renal function, the clinician did not opine as to whether hypertension was as likely as not aggravated by diabetes mellitus, even if the hypertension was not caused by the diabetes mellitus. A remand is needed to comply with the Board's January 2015 remand. The February 2015 medical opinion did not address the 2006 conclusion of NAS regarding hypertension and herbicide exposure; was unclear by addressing herbicide exposure again in the rationale regarding secondary service connection; and did not provide a rationale addressing whether service-connected diabetes mellitus as likely as not aggravated (i.e., worsened beyond the natural progress) the hypertension. In light of the foregoing, the Board concludes that a VA medical opinion is required to clarify the etiology of the Veteran's hypertension. Additionally, the Veteran testified that he had been treated by Dr. V.B., a private physician, from 2002 to 2010, for diabetes mellitus and hypertension. The file contains no records from Dr. V.B. prior to 2008, and Dr. V.B.'s May 2013 letter does not indicate those records are unavailable. On remand, the AOJ should attempt to obtain those records, and obtain any outstanding, relevant, VA treatment records. Accordingly, the case is REMANDED for the following action: 1. With the assistance of the Veteran as necessary, obtain any outstanding, relevant treatment records concerning hypertension, including treatment records from Dr. V.B. prior to 2008. All attempts to obtain records should be documented in the claims folder. Appellant's assistance in identifying and obtaining records should be solicited as needed. 2. Obtain any outstanding VA treatment records. 3. After any additional documents are obtained and associated with the electronic claims file, obtain a VA medical opinion concerning the Veteran's hypertension claim. Following a complete review of the claims file, the reviewing professional is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension disability was caused or aggravated (i.e., worsened beyond the natural progress) by his service-connected diabetes mellitus, type II. If aggravation is found, the clinician 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 service-connected diabetes mellitus. In providing the opinion, the examiner should address the significance of the presence/absence of kidney disease. The opinion provider's attention is directed to the October 2010 and May 2013 letters from Dr. V.G.B. that discuss the diagnosis of diabetes mellitus in 2002 and hypertension in 2006 and his opinion that there was "likely a connection" between the diabetes and hypertension. In addition, the clinician is asked to opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension had its clinical onset during service, or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should indicate consideration of the 2006 conclusion of the National Academy of Sciences (NAS) that found "limited or suggestive evidence of an association" between herbicide exposure and hypertension (notwithstanding that VA has not added hypertension to the list of conditions under 38 C.F.R. § 3.309 for which presumptive service connection due to Agent Orange exposure is available). Relevant points addressed by the clinician may include, but are not limited to, why the clinician finds studies persuasive or unpersuasive, whether the Veteran had other risk factors for developing hypertension, and whether hypertension has manifested in an unusual manner. A complete rationale for all opinions must be provided. 4. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ S. S. TOTH 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).