Citation Nr: 1537354 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 08-10 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from November 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for diabetes mellitus and assigned an initial 20 percent rating, effective from March 3, 2005. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) in May 2008, and at Board hearing in May 2011 before a Veterans Law Judge (VLJ). In September 2011, the Board remanded this matter for further development. In a May 2012 letter, the Veteran was advised that the VLJ who held the May 2011 hearing had retired from the Board and of his right to a hearing before another VLJ. No response to this letter has been received. In April 2013, the Board remanded this matter for more development. In February 2014, the Board again remanded this matter for development. As will be more fully explained below, the Board concludes there has not been substantial compliance with the February 2014 remand. Stegall v. West, 11 Vet. App. 268 (1998). In November 2011, the Veteran underwent an examination for hypertension, and a diagnosis of cardiomegaly was rendered. It was noted that chest x-ray dated September 23, 2004, from Hawaii Radiologic Associates provided an impression of cardiomegaly. The examiner opined that the Veteran's cardiomegaly was at least as likely as not proximately due to or the result of his hypertension. For rationale, the examiner noted that hypertension had already been determined to be at least as likely as not due to service, and, and the cardiomegaly was at least as likely as not due directly to hypertension, and the hypertension was at least as likely as not due to the diabetes mellitus, type II. The examiner also opined that the Veteran's hypertension had caused the heart to work harder which can likely lead to cardiomegaly. On a VA DBQ examination of heart conditions dated in July 2013, it was noted that the Veteran was not and had not been diagnosed with a heart condition. It was noted that the Veteran reported he was told in the past that an echocardiogram showed he had an enlarged heart, however, he had never been diagnosed with or treated for an actual heart condition. It was noted that he did not have ischemic heart disease, did not require continuous medication to control a heart condition, had not had a myocardial infarction or congestive heart failure. A chest x-ray was reported to be "abnormal" and the impression was borderline cardiomegaly. Thus, a claim of entitlement to service connection for cardiomegaly, due to service-connected hypertension and diabetes mellitus, has been raised by the record but has not been adjudicated by the AOJ. The Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the prior remand, the Veteran is co-treated for his diabetes by VA and non-VA medical professionals. In September 2013, he submitted a medical statement from the non-VA treatment provider, Dr. B. F., reporting that the Veteran "regulated activities to help control his diabetes and prevent hyper- and hypoglycemia". Dr. B.F. did not provide any explanation for this determination, however, and the determination was not otherwise corroborated by the medical evidence of record, which does not suggest that the diabetes requires regulation of activities. In light of this discrepancy, in the February 2014 remand the Board directed that the AOJ: "Contact Dr. B. F. to afford Dr. F. the opportunity to provide an addendum to the September 2013 medical statement. Specifically, Dr. F. must provide additional information as to the reported regulated activities, including when the reported regulated activities became necessary to control the Veteran's diabetes and whether the regulated activities has affected both occupational and recreational activities. If Dr. F. is unable to prepare an addendum or does not respond, notify the Veteran that he is ultimately responsible for providing the evidence." In a Post-Remand Brief submitted by the Veteran's representative in January 2015, it was asserted that the Veteran "was not provided notice that an addendum to the September 2013 statement was not provided by Dr. B.F., thus violating Stegall". Review of the record shows that the AOJ sent an initial letter in April 2014, to Dr. F. at the Hilo Family Medical Center, requesting that he provide treatment records and an addendum to his statement of September 2013. In May 2014, the AOJ sent a second letter to Dr. F again requesting the treatment records and an addendum to the September 2013 statement. In a letter dated the same day in May 2014, the AMC advised the Veteran that requests had been made for treatment records or other evidence from Hilo Family Medical Center, but that it was still his responsibility to ensure VA receives it. Thereafter, in response to their letter requests, the AOJ received only copies of the Veteran's treatment records from the Hilo Family Medical Center and Dr. F, dated through February 2014, but did not receive an addendum from Dr. F. Unfortunately at that point the AMC did not send any notice to the Veteran indicating that Dr. F. had not provided addendum. Further, in the July 2014 Supplemental Statement of the Case, VA informed the Veteran that it had received private treatment records from Dr. B.F. in June 2014, but did not specify whether this included or did not include an addendum from Dr. F. Thus, the Board concludes that there has not been substantial compliance with the February 2014 remand and a remand is warranted pursuant to Stegall v. West. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that medical records were received from Hilo Family Medical Center, but that Dr. F. did not send an addendum to the September 2013 medical statement. Advise the Veteran that he is ultimately responsible for providing the evidence. Give the Veteran and his representative an opportunity to respond. 2. Review the claims file and readjudicate the Veteran's claim for increased initial evaluation of diabetes mellitus. If any benefit sought on appeal remain denied, furnish the Veteran and his representative a supplemental statement of the case and give them the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).