Citation Nr: 1625010 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 08-20 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for end stage renal disease, to include as due to chemical exposure or as secondary to hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a chronic back disability. 4. Entitlement to an initial disability rating higher than 10 percent for service-connected chondromalacia of the right knee, with degenerative changes. 5. Entitlement to an initial disability rating higher than 10 percent for service-connected chondromalacia of the left knee, with degenerative changes. REPRESENTATION Appellant represented by: Swords to Plowshares, Veterans Rights Organization, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated June 2007 (issued in July 2007), February 2008 (issued in March 2008), July 2009 and August 2013 from the Department of Veterans Affairs (VA) Regional Office (RO) above. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing as to issue of service connection for end stage renal disease. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran requested a videoconference hearing as to the issue of service connection for hypertension. See Veteran's VA form 9 timely submitted in December 2014. Such has not been conducted. The claim must be returned to the AOJ for scheduling of a videoconference hearing as to this issue. The claim of entitlement to service connection for end stage renal disease, to include as due to chemical exposure or as secondary to hypertension, must also be returned to the AOJ prior to Board review because it is inextricably intertwined with the claim of service connection for hypertension. To wit, the Veteran advances the theory, among others, that the end stage renal disease is due to hypertension that began in service. Also, as noted in the prior Board Remand decision, the Veteran requested a Travel Board hearing at the AOJ with respect to his claims of service connection for a back disability and increased ratings for service-connected left and right knee disabilities. The record does not reflect that this hearing took place, and it does not appear that the Veteran has withdrawn the request. Such a hearing should be scheduled in accordance with current procedures, as per the Veteran's request, and as the docket permits. Finally, the Veteran offered argument in April 2015 in support of his claim of service connection for hypertension and end stage renal disease as secondary to that condition. The Veteran argued that his end stage renal disease is due to hypertension that initially manifested in service. He submitted a March 2015 statement from his physician, nephrologist and internist, I.F.I., M.D., in furtherance of his claim. This document, which appears to offer some degree of additional opinion on the Veteran's case but on its face is not wholly dispositive to the Board (see Colvin v. Derwinski, 1 Vet. App. 171 (1991)), has not been reviewed by the VA examiner who offered a negative nexus opinion in this matter. The Veteran has specifically asked that this medical evidence be considered by the AOJ. See April 2015 letter from Veteran wherein he explicitly asks for a supplemental statement of the case to be issued addressing the March 2015 letter from his doctor. Under the circumstances of this case, the Board believes that this medical evidence should be considered by the examiner prior to Board review, particularly in view of the fact that the VA examiner's opinion should be based on all relevant evidence of record. The claim should be returned to the VA examiner, or a suitable substitute, for an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. After determining which type of hearing he prefers, schedule the Veteran for a Travel Board or videoconference hearing at the RO with respect to his claims of service connection for a back disability and an increased rating for service-connected left and right knee disabilities, and service connection for hypertension as per the Veteran's requests, and as the docket permits. If the Veteran no longer seeks such a hearing, this should be documented in the record. 2. Return the claim to the examiner who performed the VA examination for hypertension and renal disease, and authored the January 2015 addendum, or a suitable substitute if that examiner is unavailable. After reviewing the record, with specific focus on the newly added opinion of Dr. I referenced above, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran's current hypertension is the result of his military service. 3. Upon completion of the above-requested development, the RO should readjudicate the claims on appeal, taking into account any newly obtained evidence and conducting any additional development deemed necessary. If the claims remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which 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 2014). _________________________________________________ C. TRUEBA 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).