Citation Nr: 21071072 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-27 325 DATE: November 29, 2021 ORDER Service connection for hypertension is granted. REMANDED The issue of entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is remanded. The issue of entitlement to service connection for a cervical spine disability is remanded. APPELLANT'S CONTENTIONS The appellant contends that the Veteran developed hypertension as a result of his service-connected type II diabetes mellitus. FINDING OF FACT The Veteran's hypertension was aggravated by his service-connected type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to May 1968. The Veteran passed away in October 2015. The appellant is the Veteran's surviving spouse and VA has recognized her as the substituted party in the instant case. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction is currently with the RO in Portland, Oregon. The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2020. The transcript of the hearing has been associated with the claims file. This claim was previously before the Board at which time the Board remanded it for additional development. Entitlement to service connection for hypertension Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). At the outset, the Board notes that the Veteran is service connected for type II diabetes mellitus. The Board also notes that a current diagnosis of hypertension was confirmed by the evidence of record during the period on appeal. In August 2021, a VA examiner confirmed that the Veteran had a current diagnosis of hypertension. See August 2021 VA Hypertension Disability Benefits Questionnaire. Thus, the remaining question is whether the Veteran's hypertension was related to his service-connected type II diabetes mellitus. In this regard, in September 2021 a VA examiner opined that the claimed condition was at least as likely as not aggravated beyond its natural progression by service-connected type II diabetes mellitus. The examiner reasoned that even well controlled diabetes can aggravate hypertension over time in that it has a significant effect on vascular health which can lead to worsening of hypertension beyond its natural progression. An individual without diabetes would not suffer such increased strain on the vascular system. The Board finds the September 2021 VA examiner opinion to be highly probative. The opinion was based on review of the claims file and relevant facts, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the September 2021 VA examiner indicated that the records were insufficient to determine a baseline level of severity or increased manifestations. However, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. In view of the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran had hypertension secondary to his service-connected type II diabetes mellitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted on a secondary basis. REASONS FOR REMAND 1. Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is remanded. As the issue of entitlement to service connection for a cervical spine disability is being remanded for further development, decision by the Board on the issue of entitlement to service connection for bilateral peripheral neuropathy of the upper extremities, claimed as secondary to a cervical spine disability would, at this point, be premature. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Entitlement to service connection for a cervical spine disability is remanded. The appellant contends that the Veteran developed a cervical spine disability as a result of an in-service incident in which he injured his neck while lifting heavy artillery. She further contends that the Veteran complained of and sought treatment for his cervical spine following his separation from service. An August 2021 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that a cervical spine disability was not documented in the service records. Therefore, the examiner concluded that there was insufficient medical evidence discussing a causal connection between the current cervical spine disability and the Veteran's military service. The Board finds the August 2021 VA examiner opinion inadequate to decide the Veteran's claim for service connection for a cervical spine disability. The VA examiner's rationale stated that a cervical spine disability was not documented in the service records. However, the examiner did not address the appellant's contention that the Veteran developed a cervical spine disability as a result of an in-service incident in which he injured his neck while lifting heavy artillery or her contention that the Veteran complained of and sought treatment for his cervical spine since service. The Board notes that the Veteran is competent to report observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Further, the Board notes that the October 2020 Board remand directives specifically requested that the examiner address this lay evidence and a remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that an addendum opinion should be provided on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (stating that, when VA undertakes to provide a veteran with an examination, that examination must be adequate for VA purposes) The matters are REMANDED for the following action: 1. Request that the appellant provide or authorize VA to obtain records of the Veteran's relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the August 2021 VA examiner for an addendum opinion regarding a cervical spine disability. If that examiner is unavailable, the opinion should be provided by another examiner. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically address the appellant's contention that the Veteran had a cervical spine disability as a result of an in-service incident in which he injured his neck while lifting heavy artillery. The examiner is also asked to specifically address the appellant's contention that the Veteran complained of and sought treatment for his cervical spine since service. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.