Citation Nr: 21021664 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-32 522 DATE: April 13, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II is remanded. Entitlement to service connection for a kidney condition, including as secondary to service-connected diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1965 to October 1967. In May 2020, the Board previously remanded the current claims for additional development. In April 2019, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The VLJ who conducted the April 2019 hearing is no longer with the Board. In January 2021, the Board offered the Veteran an opportunity to testify at a new hearing before a different VLJ. He was informed that if he failed to respond within 30 days it would be assumed that he did not want another hearing. Because he has not responded to the January 2021 letter this case can proceed without a hearing. Entitlement to service connection for hypertension and a kidney condition are is remanded. In the May 2020 remand, the Board requested that the RO procure VA medial opinions to address the etiology of the Veteran’s hypertension and kidney condition. The Board specifically directed that the examiner should provide an opinion as to whether hypertension and a kidney condition were otherwise related to service or caused or aggravated by service-connected diabetes mellitus, type II. The Board also instructed that the examiner should consider/discuss relevant medical evidence including the Veteran’s private treatment records showing a relationship between diagnosed hypertension/chronic kidney disease and diabetes mellitus, type II. In an attempt to comply with the Board’s remand directives, the RO procured December 2020 VA examinations and medical opinions that provided negative nexus opinions. These opinions, however, did not adequately consider/discuss the Veteran’s private treatment that suggest a relationship exists between hypertension/chronic kidney disease and diabetes mellitus, type II. As such, the Board finds that the December 2020 VA medical opinion did not substantially comply with the previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner’s medical opinion regarding hypertension also appears to be largely conclusory. In pertinent part, the VA examiner stated that hypertension was more likely essential and less likely related to diabetes mellitus, type II without providing an explanation for this conclusion. Accordingly, remand is warranted for new VA medical opinions consistent with the directives herein. The Board also notes that there appears to be outstanding private treatment records from St. Jude Hospital regarding the Veteran's kidney condition, which have not been obtained or requested. The Board emphasizes that the missing private treatment records are highly pertinent to the Veteran's claim on appeal. Accordingly, remand is warranted for additional development to attempt to obtain these records. See 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following actions: 1. Make reasonable efforts to obtain any outstanding and relevant VA or private treatment records, to include private diabetic treatment records from St. Jude Hospital. With the Veteran's assistance, if necessary, obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above records request has been completed, obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the medical opinion. a) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that hypertension had its onset during service or is otherwise related to service, to include presumed herbicide agent exposure. [Exposure to herbicides agents was previously conceded by the RO when it awarded the Veteran service connection for diabetes mellitus, type II.] b) The examiner must also opine as to whether hypertension is at least as likely as not (50 percent probability or greater) caused or aggravated by the Veteran's service-connected diabetes mellitus, type II. Aggravation in this context is defined as any increase in disability. In rendering the above opinions, the examiner must specifically consider and discuss the Veteran’s May 2018 private treatment records that indicate the Veteran’s hypertension is associated with diabetes. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. 3. After the above records request has been completed, obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s kidney condition. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the medical opinion. a) The examiner should identify the existence of any kidney condition present during the course of the claim. The examiner must reconcile any finding with the diagnosis for chronic kidney disease in the Veteran private treatment records. b) The examiner must opine as to whether a kidney condition is at least as likely as not (50 percent probability or greater) caused or aggravated by the Veteran’s service-connected diabetes mellitus, type II. Aggravation in this context is defined as any increase in disability. c) If, and only if, the Veteran’s hypertension is found to be etiologically related to service/service-connected disability, the examiner should opine as to whether a kidney condition is at least as likely as not (50 percent probability or greater) caused or aggravated by the Veteran’s hypertension. Aggravation in this context is defined as any increase in disability. In rendering the above opinions, the examiner must specifically consider and discuss the Veteran’s May 2018 private treatment records that indicate the Veteran’s kidney condition is associated with diabetes and/or hypertension. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. PAUL METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.