Citation Nr: 1625022 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 11-30 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty with the Air Force from October 1962 to October 1983. Among the medals received for his honorable service is the Republic of Vietnam Gallantry Cross. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A June 2009 VA examination asserted that the Veteran's hypertension is less likely than not caused by or a result of his service-connected diabetes mellitus because the conditions were diagnosed at the same time, and because the Veteran does not have diabetic renal insufficiency. An October 2011 examination asserted that "[t]he onset of the diagnosis occurred at the same time. Thus[,] there is no nexus of aggravation between [diabetes mellitus II] and [essential hypertension]. There is no renal insufficiency. Thus[,] there is no nexus of aggravation per medical literature." The rationale indicates that the examiner intended to assert that the Veteran's hypertension was not aggravated by the service-connected diabetes mellitus. Unfortunately, the VA examinations are not adequate. The assertions that the hypertension and diabetes mellitus were diagnosed at the same time appear based upon the medical history given by the Veteran at the June 2009 VA examination, in which he asserted that diabetes mellitus and hypertension were diagnosed at the same time in 2004. This assertion is contradicted by the Veteran's treatment records. The earliest treatment records associated with the claims file are private records from April 2005. The format of the private treatment records is such that several conditions are listed under the header of "Past Medical History" next to boxes that can be checked to indicate the presence of each disease or disability in the patient's history. The April 2005 record contains a checked box indicating that the Veteran had a history of diabetes mellitus, but notably does not contain a check in the box indicating a history of hypertension. Records from later in April 2005 and in early May 2005 also indicate a history of diabetes mellitus but not hypertension. A record from later in May 2005 contains a question mark next to hypertension, and a record from still later that month contains a clinical impression of hypertension. The treatment records thus indicate that the Veteran was diagnosed with diabetes prior to being diagnosed with hypertension. Contemporaneous treatment records are more probative than a history given by the Veteran years later, which is necessarily subject to the fallibility of human memory. Therefore, the VA opinions are based upon inaccurate facts, and are of limited probative value. Reonal v. Brown, 5 Vet. 458, 461 (1993). Upon remand, a new VA opinion should be obtained that fully discusses the Veteran's treatment records. Additionally, in the event that treatment records from 2004 would show a diagnosis or discussion of hypertension, the Veteran should be asked to identify the treatment provider he was referring to when he asserted that his hypertension was diagnosed in 2004. An attempt should be made to obtain treatment records from any provider so identified. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). The claims folder should also be updated to include VA treatment records compiled since December 18, 2015. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the Gulf Coast Veterans Health Care System and all associated outpatient clinics dated from December 18, 2015 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Request that the Veteran identify the treatment provider that he asserted diagnosed him with hypertension in 2004, as per the June 2009 VA examination history. After obtaining the appropriate authorization, request records from any treatment provider so identified. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Appellant of the records that were not obtained (2) tell the Appellant what steps were taken to obtain them, and (3) tell the Appellant that the claim will be adjudicated without the records but that if she later submits them, the claim may be reconsidered. See 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2013)). 3. After completing all of the above development, forward the claims file to an appropriate VA clinician. After reviewing the claims file, the clinician is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by (permanently worsened beyond the natural progression of the disease) his service-connected diabetes mellitus. Any opinion offered must be supported by an adequate rationale. The clinician is advised that although the Veteran asserted during his June 2009 examination that hypertension and diabetes mellitus were diagnosed at the same time in 2004, private treatment notes from April and early May 2005 indicate that the Veteran had a history of diabetes mellitus but no history of hypertension. An impression of hypertension was noted in May 2005. Any opinion offered should discuss these treatment records. 4. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL MARTIN 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).