Citation Nr: 18142350 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-10 307 DATE: October 15, 2018 REMANDED Entitlement to service connection for hypertensive vascular disease (hypertension), to include as due to ionizing radiation, is remanded. Entitlement to service connection for diabetes mellitus, to include due to ionizing radiation, is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance, is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from April 1951 to April 1953. In May 2017, the Veteran testified at a Board hearing. The transcript is of record. REASONS FOR REMAND The Board regrets the additional delay; however, a remand is necessary to ensure compliance with the Board’s prior remand instructions and to ensure that due process is met. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2018, the Board remanded this case for VA examinations with opinions as to whether the Veteran’s hypertension and diabetes are a result of his military service, to include exposure to ionizing radiation. In August 2018, the Veteran underwent VA examinations for hypertension and diabetes. The VA examiner opined that hypertension and diabetes are less likely than not related to military service or exposure to ionizing radiation. The examiner reported that there are no service treatment records to support a diagnosis of hypertension or diabetes in service and neither hypertension nor diabetes is a presumptive illness related to ionizing radiation. The Board finds the opinion of the VA examiner does not comply with the stated directives of the January 2018 remand for the following reasons. First, the Veteran’s service treatment and personnel records are unavailable (except for two April 1953 records) due to the fire that occurred in the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973. Since the Veteran’s service records have been destroyed, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit of the rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the VA examiner’s rationale cites a lack of diagnosis of diabetes or hypertension in service based on a review of the service treatment records; however, the majority of these records are unavailable. As such, this opinion is inadequate for adjudication. Secondly, the examiner concluded that the Veteran’s hypertension and diabetes is not due to ionizing radiation because they are not presumptive illnesses related to ionizing radiation. See 38 C.F.R. § 3.311. In the January 2018 remand, the Board clarified that hypertension and diabetes are not “radiogenic diseases” as defined by 38 C.F.R. § 3.311 and concluded that an opinion to determine whether direct service connection based on the in-service event of exposure to ionizing radiation was necessary. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the VA examiner did not provide an opinion as to whether the Veteran’s exposure to ionizing radiation in service resulted in his current diagnoses of hypertension and diabetes. As such, compliance with the Board directives was not met and an opinion on whether the Veteran’s hypertension and diabetes are the result of exposure to ionizing radiation during active service is still required. Additionally, VA has a duty to make reasonable efforts to assist Veterans in securing evidence necessary to substantiate their claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The record indicates that the Veteran receives disability payments from the Social Security Administration (SSA). However, there are no Social Security applications, decisions, or medical records associated with an SSA claim in the record. As such, any records from Social Security should be obtained as they may contain evidence necessary for the Veteran to substantiate his claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran's claim for SMC aid and attendance is inextricably intertwined with the claims for service connection for hypertension and diabetes on appeal. Therefore, the Board finds that the claim for a SMC aid and attendance must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Acquire from SSA all records pertaining to the Veteran's claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. 3. After the above development has been completed, obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to his active service, or is caused by or aggravated by military service, to include due to ionizing radiation exposure in service. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes is related to his active service, or is caused by or aggravated by military service, to include due to ionizing radiation exposure in service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent and credible to report his symptoms of hypertension and diabetes. The examiner must specifically consider and discuss the Veteran's testimony, in addition to the lay statements of record, regarding his in-service injury and any continuity of symptomology since service and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In rendering the opinion, the examiner is advised that the Veteran’s service treatment records are fire related except for two April 1953 records. As such, the VA examiner must address the Veteran’s lay statements and testimony regarding his onset of hypertension and diabetes as well as the continuous nature of these symptoms since service. If a negative nexus opinion is rendered, the VA examiner must provide a complete and detailed rationale for the opinion. The report must reflect consideration of the Veteran’s entire documented medical history and all lay evidence. A complete rationale must be provided for each opinion given. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel