Citation Nr: 1302848 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 05-12 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Service connection for urinary frequency as secondary to service-connected diabetes mellitus type 2. 2. Service connection for obesity as secondary to service-connected diabetes mellitus type 2. 3. Service connection for sleep apnea as secondary to service-connected diabetes mellitus type 2 and/or secondary to obesity. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. These matters are before the Board of Veterans Appeals (Board) on appeal from an April 2006 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a video conference hearing before the undersigned Acting Veterans Law Judge in May 2008. A transcript of the hearing has been associated with the Veteran's VA claims folder. In February 2011 correspondence, the Veteran reported that he stopped working in August 2009. Such correspondence raises the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In July 2008, the Board, in pertinent part, remanded the matters on appeal for further development. Specifically, the Board requested that the Veteran be afforded VA examinations to determine the current nature and etiology of his current urinary, sleep apnea, and obesity disorders. For the reasons detailed below, the Board finds that the VA examinations accorded to the Veteran pursuant to this remand are not adequate for resolution of this case. Therefore, a new remand is required to ensure the Veteran is accorded adequate examinations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.). Regarding the matter of entitlement to service connection to obesity, the Veteran was afforded a VA examination in January 2009. He was diagnosed with increased body mass index with associated obesity. The examiner opined that the Veteran's increased body weight was due to not following the guidelines or instructions of a proper diabetic diet and irregular eating habits due to his occupation away from home. In February 2011 correspondence, as noted above, the Veteran reported that he stopped working in August 2009. However, he also reported that he follows his diabetes diet as closely as possible, that he no longer has irregular eating, and that he is still gaining weight. Based on the Veteran's statements, the Board finds that the Veteran should be afforded another examination to determine the nature and etiology of his obesity. Regarding the matter of entitlement to service connection to sleep apnea, the Veteran was afforded a VA examination in January 2009. He was diagnosed with obstructive respiratory sleep apnea. The examiner opined that his sleep apnea "may" be due to his increased body mass index. The Board finds this opinion is non-responsive to the July 2008 Board remand request as it is inconclusive and speculative. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman v. Brown, 5 Vet. App. 237, 241 (1993); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for Veterans Claims has found that an opinion expressed in terms of "may" implies "may or may not", and is inherently speculative. Perman, 5 Vet. App. at 241. Hence, the January 2009 VA examiner's opinion is inadequate. Accordingly, the Board finds that the Veteran should be afforded another advisory medical opinion to determine the etiology of his sleep apnea. Regarding the matter of entitlement to service connection for urinary frequency, the Veteran was again afforded a VA examination in January 2009. The diagnosis was urinary frequency. The examiner opined that frequency of urination is one of the symptoms of diabetes mellitus. Such opinion was non-responsive to the Board's July 2008 remand instructions as the examiner provided no nexus opinion as to whether the Veteran's urinary frequency was actually caused by or aggravated by his service-connected type 2 diabetes mellitus. In a July 2009 VA examination addendum report, the examiner noted that the risk factors for urinary frequency include the Veteran's current medication Hydrochlorothiazide, which is a diuretic, and benign prostatic hypertrophy. The examiner further instructed that no opinion could be provided without resort to mere speculation without cystocopy findings. A January 2011 VA urology consult report noted the Veteran was asked if he would any additional work-up, such as cystoscopy, and he responded that he did not prefer to have any testing. Consequently, the testing identified in the July 2009 VA examination addendum report was not conducted. However, in February 2011 correspondence, the Veteran related that the January 2011 doctor gave the impression that the additional testing, such as cystoscopy, was not necessary, and so he did not request such, but that he was willing to do any and all testing required. As the Veteran has indicated he is willing to take any additional testing necessary in the matter so that an adequate opinion can be provided, the Veteran should be afforded another opportunity to participate in such. Thereafter, a nexus opinion should be obtained as to the etiology of the Veteran's urinary frequency. Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board further finds that any outstanding treatment records regarding the claimed urinary, sleep apnea, and obesity disorders should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his clamed urinary, sleep apnea, and obesity disorders since December 2010. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should again schedule the Veteran for VA examinations to determine the current nature and etiology of his urinary, sleep apnea, and obesity disorders. The claims folder should be made available to the examiners for review of pertinent documents therein in connection with the examination; the examiners must indicate that the claims folder was reviewed. All indicated studies and tests (e.g., cystoscopy) should be completed, and all clinical findings should be reported. Each examiner must then express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any such disability was caused by or aggravated by the service-connected diabetes. "Aggravation" means a permanent increase in the severity of the underlying disability beyond its natural progression. If the examiner(s) determine that any of the disabilities were aggravated by the service-connected diabetes, the examiner(s) should identify the level of disability caused by the diabetes, to the extent possible. The examiners should provide a complete rationale for any opinion provided. If any examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so noted. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination reports to ensure that each is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. 5. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the relevant statements and supplemental statements of the case of record, and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ John Kitlas Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a 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 decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).