Citation Nr: 0308615 Decision Date: 05/07/03 Archive Date: 05/15/03 DOCKET NO. 01-07 566A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 40 percent disabling. 2. Entitlement to service connection for right eye partial blindness, as secondary to diabetes mellitus. 3. Entitlement to service connection for rheumatoid arthritis, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from January 1970 to January 1974 and from December 1981 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2002, the veteran testified at a Travel Board hearing before the undersigned. REMAND During the pendency of the veteran's appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially modified the circumstances under which VA's duty to notify and assist claimants applies, and how that duty is to be discharged. See Public Law No. 106- 175 (2000) (now codified at 38 U.S.C. §§ 5100-5103A, 5106-7 (West 2002)). The new statute also revised the former section 5107(a) of title 38, United States Code, to eliminate the requirement that a claimant must come forward first with evidence to well ground a claim before the Secretary of Veterans Affairs is obligated to assist the claimant in developing the facts pertinent to the claim. Under regulations issued after enactment of the VCAA, and effective February 22, 2002, the Board has been conducting evidentiary development of appealed cases directly. See 38 C.F.R. § 19.9(a)(2) and (a)(2)(ii) (2002). Consistent with the new duty-to-assist regulations, after reviewing the veteran's case, the Board determined that the following additional evidentiary development was needed prior to final appellate consideration of his claims: 1. Obtain the veteran's medical records from the VA Medical Center (VAMC) in Birmingham, Alabama, for any treatment of diabetes mellitus, diabetic retinopathy, gastroparesis, right optic nerve infarct, and/or rheumatoid arthritis during the period of August 1999 to the present. Request complete clinical records. 2. Obtain the veteran's medical records from the VAMC in Tuscaloosa, Alabama, for any treatment of eye disorders, diabetes mellitus, and/or neurologic disorders, and occupational therapy treatment during the period of August 1999 to present. Request complete clinical records. 3. Obtain the veteran's medical records from Dr. Judy Travis, 125 E. Capitol Street, Demopolis, AL 36732, for any treatment for diabetes mellitus and related complications, right optic nerve infarct, and rheumatoid arthritis during the period of August 1999 to present. Request complete clinical records. 4. Obtain the veteran's medical records from Dr. N. Earl Perret, Demopolis, AL, for any treatment for diabetes mellitus and related complications during the period from August 1999 to present. Request complete clinical records. 5. Obtain the veteran's medical records from the Bryan Whitfield Hospital, 105 Highway 50 East, PO Box 890, Demopolis, AL 36748, for any treatment for diabetes mellitus, diabetic retinopathy, right optic nerve infarct, and rheumatoid arthritis during the period of September 2000 to present. Request complete clinical records. 6. Obtain the veteran's medical records from the Baptist Medical Center, Princeton, PO Box 13425, Birmingham, AL 35282, for treatment for heart surgery, coronary artery disease, and diabetes mellitus and related complications during the period of September 2000 to present. Request complete clinical records. 7. Obtain the veteran's medical records from Dr. Malek Karassi, Birmingham, AL, for treatment for diabetes mellitus and related complications during the period of May 2000 to present. Request complete clinical records. 8. Obtain the veteran's medical records from Dr. Farrell O. Mendelsohn, Suite 707, 801 Princeton Avenue, SW, Birmingham, AL 35211, for treatment of coronary artery disease and diabetes mellitus during the period of May 2000 to present. 9. Obtain the veteran's medical records from Dr. Barry Fields, Suite 300, 817 Princeton Street, SW, Birmingham, AL 35211, for treatment for coronary artery disease and diabetes mellitus during the period of 1999 to present. 10. Obtain the veteran's medical records from Dr. Timothy Bassett and the Northport D.C. Hospital, Northport, AL, for treatment of diabetes mellitus, coronary artery disease, and herniated disc surgery during the period from April 2000 to present. 11. Contact the Social Security Administration (SSA) and request copies of all medical records that were considered in the veteran's claim for SSA disability benefits (and subsequent disability determination evaluations) awarded in a May 1998 administrative decision. All records obtained should be associated with the claims file. 12. Arrange appropriate VA examination(s) (i.e., endocrine, gastrointestinal, ophthalmology, neurologic, vascular, etc.) to determine the current severity of the veteran's service- connected diabetes mellitus and any diabetic complications that may be manifested. The entire claims folder, to include a copy of the applicable Rating Schedule provisions (Diagnostic Code 7913) of the current endocrine system regulation for rating diabetes mellitus, should be reviewed by the examiner(s) prior to examination(s). All indicated tests and studies should be performed, and all pertinent findings should be reported in detail. The examiner(s) should record appellant's body weight, describe any change in weight during the past year, and state whether the appellant is obese, underweight, or at ideal body weight. The examiner(s) should describe his general state of health; his ability to engage in usual activities and the regularity of activities; patterns of eating, work, exercise, and sleep; and whether he is fatigued on a consistent basis. The examiner(s) should record the types of insulin taken, the number of units needed daily, and the time of day injected; and if other hypoglycemic agents are used, the types and amounts should be specified. The examiner(s) should record the caloric content of the veteran's regular diet, and, if the appellant does not know the number of calories consumed, it should be so stated. Inquiry as to any specific complaints he may have considering control of his blood sugar should be made. The examiner(s) should describe in detail the incidence and frequency of any episodes of ketoacidosis or hypoglycemic reactions (e.g., daily, weekly, monthly), and the measures taken for their prevention; and the type and frequency of treatment required for his diabetes (i.e., outpatient treatment and/or hospitalization, and the frequency thereof). The examiner(s) should describe in detail the effect, if any, the diabetes mellitus has on veteran's social and industrial activities (e.g., whether the diabetes requires avoidance of strenuous occupational and/or recreational activities and other regulation of activities); whether insulin injections are required, and if so, their frequency and dosages; whether oral hypoglycemic agents are required, and if so, their dosages; the degree of control achieved in response to medication (i.e., is the diabetes well-controlled, poorly-controlled, uncontrolled); whether restricted diet is required; and whether there is progressive loss of weight and strength, and if so, the extent and severity thereof. The examiner(s) should record specific complaints concerning diabetic complications involving the skin, eyes, nervous system, heart, peripheral blood vessels, or genitourinary system, and he should be examined for diabetic complications. The examiner(s) should describe in detail the nature and severity of any complications, such as diabetic retinopathy, diabetic enteropathy, gastroparesis, nephropathy, vascular deficiencies/arteriosclerosis, neuropathy, pruritus ani, etc. In the event there are no diabetic complications, the examiner(s) should so state. However, if there are significant diabetic complications, the veteran should be scheduled for all indicated additional examinations, such as neurologic, ophthalmologic, cardiovascular, gastrointestinal, peripheral vascular, dermatologic, genitourinary, etc., in order to evaluate the nature and severity of any diabetic complications. Again, these additional tests are to be scheduled only if the appellant will report and the examiners conclude that these residuals are of sufficient severity to require such additional examination. The ophthalmologic examiner should be specifically asked to comment on the nature and etiology of the veteran's right optic nerve infarct. The physician should proffer an opinion, with supporting analysis, as to the relative likelihood (i.e., is it at least as likely as not?) that the veteran's right partial blindness was caused by or aggravated by his service- connected diabetes mellitus or by a non-service-connected disorder. The degree of right eye blindness that would not be present but for the service-connected diabetes mellitus should be identified. Reasons and basis for all conclusions should be provided. However, on May 1, 2003, just prior to the Board's determination as to whether all the requested evidence had been obtained and its consideration of the claims on appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the new duty-to-assist regulations codified at 38 C.F.R. § 19(a)(2) and (a)(2)(ii)(2002). See Disabled American Veterans, et. al., v. Secretary of Veterans Affairs, ___ F.3d ___, Nos. 02-7304, -7305, -7316 (May 1, 2003) (holding that 38 C.F.R. § 19.9(a)(2) is invalid because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain the appellant's waiver.). Thus, in light of this new Federal Circuit decision, the Board is compelled to remand the veteran's case to the RO for review as to whether all the essential evidence needed to consider his claims has been obtained and for issuance of a supplemental statement of the case (SSOC) regarding all evidence received since the August 2000 statement of the case. Finally, because the record reflects that the VARO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). The Board is keenly aware that it granted the veteran's request to advance his claim on the docket due to financial hardship, and sincerely regrets the delay that may be caused by this remand. Nevertheless, due process, as mandated by the recent decision of the Federal Circuit, demands that this case be REMANDED to the RO for the following actions: 1. The RO may wish to review the claims files and the Board's requested development actions to ensure that all necessary evidentiary development is completed regarding the veteran's claims. 2. After the RO undertakes review of the issues, to include any additional evidentiary development, the appellant and the appellant's representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal since the August 2000 SOC. An appropriate period of time should be allowed for response. 3. Then, the RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-175 (2000) (now codified at 38 U.S.C. §§ 5100- 5103A, 5106-7 (West 2002)) is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied, including VA re- examination if warranted. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. __________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final 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 final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2002).