hypertension Secondary Service Connection For Hypertension

[allan]

. 06-2268

withers.268.wpd

--------------------------------------------------------------------------------

Search Terms: AGENT ORANGE HYPERTENSION

--------------------------------------------------------------------------------

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 06-2268

Eugene Withers, Appellant,

v.

Gordon H. Mansfield,

Acting Secretary of Veterans Affairs, Appellee.

Before IVERS, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

IVERS, Judge: The appellant, through counsel, appeals a June 19,

2006, Board of Veterans' Appeals (Board or BVA) decision that denied

entitlement to service connection for hypertension, including as secondary

to service-connected diabetes. Record (R.) at 1-9. This appeal is timely

and the Court has jurisdiction over the matter on appeal pursuant to 38 U.

S.C. 7252(a) and 7266(a). Single-judge disposition is appropriate.

See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the

following reasons, the Court will vacate the June 19, 2006, decision and

remand the matter for further proceedings consistent with this decision.

I. FACTS

The appellant served on active duty in the U.S. Army from July 1969

to July 1971, including service in Vietnam. R. at 13. The service

medical records are negative for any evidence of high blood pressure or a

diagnosis of hypertension. R. at 16-44.

In September 2002, the appellant filed a claim seeking service

connection for hypertension. R. at 48-57. The appellant's private medical

records, dating from November 1993 to September 2002 (R. at 71-101),

reflected a diagnosis of hypertension beginning in November 1993 (R. at

101). In January 2003, the VA regional office (RO) denied service

connection for hypertension. R. at 122-

26. The appellant filed a Notice of Disagreement the same month.

R. at 128. In February 2003, he filed a claim seeking service connection

for Type II diabetes mellitus (diabetes) as secondary to Agent Orange

exposure in service. R. at 134.

The appellant underwent a VA diabetes mellitus examination in October

2003. R. at 236-37. The appellant gave a history of hypertension since

1993. R. at 236. The examiner diagnosed Type II diabetes and "[e]

ssential hypertension unrelated to diabetes." R. at 237. The RO granted

service connection for Type II diabetes in November 2003. R. at 245-48.

The appellant perfected his appeal the same month. R. at 250. In January

2006, the RO sent the appellant a Supplemental Statement of the Case

denying service connection for hypertension as secondary to a service-

connected disability. R. at 318-24.

The Board issued its decision on appeal on June 19, 2006, denying

service connection for hypertension, to include as secondary to service-

connected diabetes. R. at 1-9. The Board relied in part on the October

2003 VA medical examination. R. at 5-6. The appellant argues that the

October 2003 VA medical examination was inadequate because the examiner

did not provide any rationale for his opinion. Appellant's Brief (Br.) at

4-8. He also argues that the Board failed to provide an adequate

statement of reasons or bases to support its determination that the 2003

examination was adequate. Appellant's Br. at 4-6. The Secretary argues

for affirmance of the BVA decision and asserts that VA was not required to

provide an examination, because there was no indication in the record that

the appellant's current disability may be related to an event in service

or to his service-connected diabetes. Secretary's Br. at 9-10.

II. ANALYSIS

As previously noted, the appellant filed a claim for direct service

connection for hypertension in September 2002. R. at 48-57. The issue of

secondary service connection for hypertension was first raised by the VA

physician in 2003. R. at 237. The claim was thereafter adjudicated and

denied by both the RO in January 2006, and by the Board in the decision

now on appeal. R. at 1-9, 318-24. In denying service connection for

hypertension as secondary to diabetes, the Board relied on the negative

nexus opinion rendered by the VA examiner in October 2003. R. at 5, 236-

37. The Board further relied upon that opinion to support its

determination that VA adequately fulfilled its obligation to assist the

appellant in the development of his claim. R. at 7-8.

The Secretary must provide a medical examination or opinion if

the evidence of record indicates that a current disability may be related

to service or a service-connected disability, and an examination or

opinion is otherwise "necessary to make a decision on the claim." 38 U.S.

C. 5103A(d)(1)-(2); 38 C.F.R. 3.159©(4) (2007); see McLendon v.

Nicholson, 20 Vet.App. 79 (2006). After the BVA issued its decision in

the instant case, the Court decided Barr v. Nicholson, 21 Vet.App. 303 (

2007), holding that "once the Secretary undertakes the effort to provide

an examination when developing a service-connection claim, even if not

statutorily obligated to do so, he must provide an adequate one or, at a

minimum, notify the claimant why one will not or cannot be provided."

Barr, 21 Vet.App. at 311. Here, the October 2003 examination contained

the examiner's opinion that the appellant's essential hypertension was

unrelated to his diabetes, but failed to include a sufficient rationale

for that opinion. R. at 237. "[A] mere conclusion by a medical doctor is

insufficient to allow the Board to make an informed decision as to what

weight to assign to the doctor's opinion." Stefl v. Nicholson, 21 Vet.App.

120, 125 (2007). Accordingly, a remand is appropriate because the Board

relied upon an inadequate examination to deny the appellant's claim. See

Barr and Stefl, both supra; Green v. Derwinski, 1 Vet.App. 121, 124 (1991).

The Court will not, at this time, address the other argument and

issue raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (

2001) (per curiam order) (holding that "[a] narrow decision preserves for

the appellant an opportunity to argue those claimed errors before the

Board at the readjudication, and, of course, before this Court in an

appeal, should the Board rule against him"). On remand, the appellant

may present any additional evidence and argument in support of the matter

remanded, and the Board must consider any evidence and argument so

presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court

expects that the Board will provide expeditious treatment of this matter

on remand. See 38 U.S.C. 7112.

III. CONCLUSION

Upon consideration of the foregoing analysis, the appellant's and the

Secretary's briefs, and a review of the record on appeal, the Board's June

19, 2006, decision is VACATED and the matter is REMANDED to the Board for

further proceedings consistent with this decision.

DATED: Oct 18 2007

Copies to:

Nona M. Robinson, Esq.

VA General Counsel (027)

SOURCE: http://search.vetapp.gov/isysquery/704abf8...9138f843/6/doc/