Citation Nr: 1800476 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-31 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1967 to August 1969, including service in the Republic of Vietnam during the Vietnam War. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In September 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These issues were previously remanded by the Board in January 2014 and January 2017 for further development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Remand is required for clarification of the April 2017 VA opinion. Specifically, the examiner opined that "the claimed condition was less likely than not (less than 50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." As a rationale for this opinion, the examiner explained, in part, "Diabetes over time can cause circulatory and hypertensive problems. Diabetes over time can cause kidney problems. For this veteran, however, hypertension was demonstrated before service-connected Agent Orange diabetes occurred. So again I think the causation is a combination of other things like each, obesity, family history and cigarettes rather than Agent Orange [caused] diabetes. The hypertension was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." Regarding his kidney disease, the examiner further opined "the claimed condition is as least as like as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected condition." As a rationale for this opinion, the examiner stated "The currently diagnosed chronic kidney disease is not as likely as not (50 percent or greater probability) proximately due to or the result of the veteran's service connected diabetes mellitus, type II with mild diabetic retinopathy. The order of events is important. His kidney condition has remained stable for years and was not caused by diabetes either." As the opinions and their rationales are inherently contradictory, remand is necessary to obtain clarification. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding, relevant treatment records and associate them with the claims file. To the extent needed, the Veteran should be asked to identify the places and approximate dates of treatment. All VA records should be obtained. If there are private records appropriate releases should be requested. All attempts to obtain records should be documented in the claims folder. 2. Return the claims file to the April 2017 VA examiner. If that examiner is unavailable, a suitable replacement must be provided. The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished in order to clarify which response was intended. The examiner must provide an clarifying opinion as to whether it is as likely as not (that is, a probability of 50 percent or greater) that any current chronic kidney disease had its origin in service or is in any way related to the Veteran's active service, including to service-connected diabetes. The examiner is specifically requested to address the private examiner's September 2013 findings regarding the onset of the Veteran's diabetes and, if present in the file, the prior examiner's reported opinion. In responding the examiner is asked to indicate whether there is other likely etiology of chronic kidney disease that may be unrelated to service. 3. Return the claims file to the April 2017 VA examiner. If that examiner is unavailable, a suitable replacement must be provided. The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished in order to clarify which response was intended. The examiner must provide a clarifying opinion as to whether it is as likely as not (that is, a probability of 50 percent or greater) that any current hypertension had its origin in service or is in any way related to the Veteran's active service, including to service-connected diabetes or PTSD. The examiner is specifically requested to address the private examiner's September 2013 findings regarding the onset of the Veteran's diabetes. In responding the examiner is asked to indicate whether there is other likely etiology of hypertension that may be unrelated to service. 4. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his lay statements, specifically including his contentions that the symptoms of his diabetes predated its diagnosis, must be taken into account in formulating the opinion. 5. The AOJ should review the examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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 D. LYON 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).