Citation Nr: 1754909 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-14 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as due to exposure to herbicidal agents and/or as secondary to service-connected diabetes mellitus type II or coronary artery disease. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Air Force from July 1967 to August 1991, with service in the Republic of Vietnam and Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefits sought. The Veteran appealed the underlying decisions in a Notice of Disagreement received in December 2009. In August 2015, the Veteran testified at a Travel Board hearing before a Veterans Law Judge. A transcript of the hearing is of record. In a September 2017 letter, the Board informed the Veteran that the Veterans Law Judge who presided at the August 2015 hearing was unavailable to participate in a decision in his appeal and informed him of his options for another Board hearing. He was also informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond to the September 2017 letter. Therefore, the Board will proceed to consider the Veteran's case on the evidence of record. This case was most recently before the Board in September 2016, when the Board remanded the issues for further development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Additional development is required before the Veteran's claim is decided. The Board remanded the claim in September 2016 in order to obtain VA addendum opinions. The remand directives expressly requested that the examiner opine as to direct service connection (i.e., whether hypertension was related to service, to include herbicide exposure, or had its onset within one year of separation), and secondary service connection (i.e., whether the hypertension was caused or aggravated by service-connected diabetes mellitus type II or coronary artery disease). In addition, the aforementioned remand directives requested that the examiner consider several relevant medical articles that the Veteran's representative submitted with the August 2016 Informal Hearing Presentation. Specifically, one article, in particular, noted that high blood pressure often affects people with diabetes but the correlation between the two is unknown. (See, e.g., Epstein M, Sowers JR. Diabetes mellitus and hypertension. Hypertension. 1992; 19:403-418; see also The National High Blood Pressure Education Program Working Group. National High Blood Pressure Education Program Working Group report on hypertension in diabetes. Hypertension. 1994; 23:145-158). VA addendum opinions were obtained in October 2016 and November 2016. The examiner opined that he was not aware of any correlation between hypertension and Agent Orange exposure. The examiner also indicated that it was unlikely that hypertension would be caused or aggravated by diabetes, as there was no evidence of renal impairment such as diabetic nephropathy and proteinuria, reasoning that both hypertension and diabetes were common conditions, but could exist independently without affecting each other. He further stated that as the Veteran did not have renal disease, hypertension was less likely than not caused or aggravated by the service-connected diabetes disability. With respect to the articles referenced above, the examiner indicated that hypertension and diabetes were not mutually exclusive; however, it was likely that an individual could have both diagnoses without a connection. The examiner concluded that such finding would explain the "unknown connection" referenced in the article. The examiner further indicated that hypertension would not be caused or aggravated by the service-connected coronary artery disease unless vascular compromise to the kidneys existed, such as renal artery stenosis. The examiner concluded that as there was no evidence of compromise to the kidneys, it was less likely that the Veteran's hypertension was caused or aggravated by the service-connected coronary artery disease. The VA examiner did not provide an opinion or rationale regarding direct service connection or a rationale for his finding regarding the lack of any correlation between hypertension and Agent Orange exposure as directed by the Board's remand. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the October 2016 and November 2016 VA examiner's opinions are insufficient for purposes of adjudication, and the claim must be remanded for a new medical opinion concerning this matter. The examiner must consider the Veteran's August 2015 testimony before the Board; specifically, his assertion that he felt "light-headed" since the 1990's, as a symptom of his current hypertension. Further, development to obtain any outstanding medical records pertinent to the Veteran's claims should be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to hypertension present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to the Veteran's service, to include his conceded exposure to Agent Orange/herbicides, or developed within one year of his August 1991 separation from service? The examiner must consider all relevant evidence of record, to include service treatment records, private and VA outpatient treatment records, as well as the Veteran's contentions, to include the August 2015 testimony before the Board, that he felt "light-headed" since the 1990's, as a symptom of his current hypertension. The examiner must also consider and discuss the articles noted by the Veteran's representative in August 2016 suggesting that diabetes mellitus and hypertension are interrelated diseases. For purposes of the opinion(s), the physician should assume that the Veteran is credible to report on in-service and post-service symptomology he experienced. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. The AOJ should also undertake any additional development deemed necessary. 4. Then, the AOJ should readjudicate the Veteran's claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND 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). _________________________________________________ B. MULLINS 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) (2017).