Citation Nr: 1640242 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 13-20 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic kidney disease, to include as secondary to diabetes mellitus, type II. 2. Entitlement to service connection for a cerebrovascular accident (CVA), to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. 5. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to September 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in May 2015, when it was remanded for additional development. As will be discussed below, another remand is required. The Board notes that the issue of entitlement to service connection for bilateral hearing loss was also part of the Veteran's appeal when it was remanded in May 2015. That claim was granted in a December 2015 rating decision. Therefore, that issue has been resolved and is no longer on appeal before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND The Board finds that further development is necessary prior to appellate review. The record indicates that there are outstanding records that may be relevant to the pending claims. An August 17, 2015 VA treatment record noted that an August 6, 2015 Choice First note was scanned into VistA. However, that record has not been associated with the claims file. A June 17, 2015 VA treatment record indicated that the Veteran desired a new VA primary care provider and would be scheduled for an appointment with his new provider within six months. Records subsequent to August 17, 2015 have not been associated with the claims file. A June 27, 2001 VA treatment record noted that the Veteran's last discharge was on July 22, 1996. While the claims file contains VA treatment records as early as July 18, 1996, the current record does not the hospital summary from hospitalization ending on July 22, 1996. Accordingly, on remand outstanding VA treatment records must be associated with the claims file. With regard to private treatment records, VA treatment records from February 2, 2005 and January 19, 2011 indicate that the Veteran received medical treatment for his stroke and blood pressure at West Tennessee State Penitentiary, Meharry Hospital in Nashville, and an unidentified jail. The claims file does not contain the aforementioned treatment records. Accordingly, on remand reasonable efforts must be made to obtain all outstanding relevant private treatment records. A May 5, 2011 "SHARE Print Screens" indicated that the Veteran's Social Security Administration (SSA) benefits claim had been denied. SSA records have not been requested or otherwise associated with the claims file. As the records may be relevant to the pending appeal, such records should be requested on remand. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). The Veteran was provided a VA examination addressing his claims for hypertension, erectile dysfunction, kidney disease, and CVA in November 2015. The examiner opined that the above conditions were not incurred in or related to the Veteran's military service or his service-connected diabetes mellitus. With regard to direct service connection, the examiner opined that the aforementioned conditions less likely as not had their onset during or were otherwise related to active service. The examiner's only rationale in support of that conclusion was to cite the diagnosis date of the various conditions. The examiner did not address whether the conditions were etiologically related to service or potentially relevant in-service events, such as the Veteran's herbicide exposure, circumcision, and penile pain. With regard secondary service-connection based on aggravation, the examiner's rationale for whether hypertension was aggravated by diabetes referenced that the Veteran's kidney damage was due to hypertension, but did not explain why reference to the kidney was relevant to the question of hypertension being aggravated by diabetes. With regard to the Veteran's claim for entitlement to SMC for loss of use of a creative organ, the claim is dependent on the resolution of the Veteran's service connection for erectile dysfunction claim. Accordingly, it is intertwined with his claim for entitlement to service connection for erectile dysfunction and must be remanded as well. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records from August 17, 2015 to present, as well as the outstanding July 22, 1996 record and the August 6, 2015 Choice First record referenced in the August 17, 2015 VA treatment record. If no records exist the claims file should be annotated to reflect such and the Veteran notified of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for the disabilities on appeal, including West Tennessee State Penitentiary, Meharry Hospital in Nashville, and the unidentified jail. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Obtain from the SSA all records pertinent to the Appellant's claim for SSA disability benefits as well as the medical records relied upon concerning that claim. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 4. After the above has been completed to the extent possible, return the claims file to the VA examiner who rendered the November 2015 opinions, if available, to obtain an addendum opinion. If that examiner is not available, the claims file should be forwarded to another VA clinician for review. The clinician must review the Veteran's claims file. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension, erectile dysfunction, CVA, or chronic kidney disease, arose during service or are otherwise related to the Veteran's periods of active military service. In so opining, the examiner should address the Veteran's in-service herbicide exposure and with regard to the Veteran's erectile dysfunction, the examiner should discuss the significance, if any, of the Veteran's in-service circumcision and reports of penile pain. A rationale for the opinions expressed must be provided. While the examiner is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion with respect to herbicide exposure, the examiner's rationale cannot rely solely on the fact that VA has not included hypertension, CVA, erectile dysfunction, or chronic kidney disease in the list of presumptive Agent Orange conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran's hypertension, CVA, erectile dysfunction, or chronic kidney disease, without regard to the conditions VA recognizes as being due to Agent Orange, are nevertheless at least as likely as not related to his exposure to Agent Orange in Vietnam. b. Please clarify the rationale for the prior opinion in November 2015 that the Veteran's hypertension was not aggravated by diabetes. The relevance of the etiology of his kidney damage to the question of whether the Veteran's hypertension is aggravated by diabetes is not clear to nonmedical professionals. In other words, why does the fact that the Veteran never had proteinuria indicate that the Veteran's hypertension is not aggravated by diabetes? The examiner should provide a complete rationale and explanation for all opinions expressed. 5. After completing the requested actions and any additional development warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ K. A. BANFIELD 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).