Citation Nr: 1000076 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-13 677A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease, to include as secondary to diabetes mellitus, type II. 2. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. 3. Entitlement to special monthly compensation based on aid and attendance and/or housebound. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Pflugner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND I. Chronic Obstructive Pulmonary Disease In June 2005, the Veteran submitted a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to his service-connected diabetes mellitus, type II. This claim was denied in January 2006 because the evidence of record did not demonstrate that the Veteran's COPD was incurred during his active duty service, was due to his active duty service, or was secondary to his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303 (2009). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service- connected condition, the veteran shall be compensated for the degree of disability, but only that degree, over and above the degree of disability existing prior to the aggravation. Id. In August 2002, service connection was granted for the Veteran's diabetes mellitus, type II, and a 20 percent evaluation was assigned thereto, effective July 9, 2001. In a treatment report dated in March 2004, H.N.H., M.D. opined that the Veteran's "morbid obesity and [congestive or chronic heart failure] is secondary[,] in part[,] to the [Veteran's] diabetes. . . ." During a January 2004 general medical VA examination, the examiner noted that the Veteran's past medical history included a September 2004 hospitalization for "COPD exacerbation," but did not include an opinion as to the cause. Treatment reports resulting from the September 2004 hospitalization demonstrated that the Veteran was experiencing increasing shortness of breath and severe anasarca. Moreover, while at the hospital, the Veteran experienced respiratory failure that required mechanical ventilation. In addition to a pericardial effusion, the diagnosis was a narrowing of his left main bronchus. The Veteran was characterized as "massively obese" and the doctor opined that the Veteran would "get better" if he lost weight. Further, the Veteran has been receiving Social Security disability compensation since March 2003 for a primary diagnosis of chronic heart failure and a secondary diagnosis of obesity. The United States Court of Appeals for Veterans Claims has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). After a longitudinal review of the claims file, the Board finds that, while the evidence of record suggests a relationship between the Veteran's service- connected diabetes mellitus, type II, and his current COPD, on the basis of aggravation. Consequently, a remand is warranted for a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). II. Diabetes Mellitus, Type II In October 2003, the Veteran submitted a claim of entitlement to an evaluation in excess of 20 percent for his service- connected diabetes mellitus, type II. Pursuant to this claim, the Veteran was scheduled for and underwent a VA examination in September 2005. Based in part on the findings from this examination, the Veteran's claim was denied in January 2006. The Veteran perfected an appeal of this issue, which was then certified to the Board for appellate review. In November 2009, the Veteran's representative contended that a remand was warranted in this case because too much time had elapsed since the September 2005 VA examination for it to provide an accurate account of the present severity of the Veteran's diabetes mellitus, type II. The Board agrees. Significantly, during the September 2005 examination, the examiner found "no symptoms of peripheral neuropathy." Since this examination, service connection has been granted for the Veteran's bilateral upper and lower peripheral neuropathy secondary to his service-connected diabetes mellitus, type II. Thus, the evidence of record demonstrated that the Veteran's diabetes mellitus, type II, has progressed since September 2005. Further, the most recent treatment report submitted by the Veteran or obtained by the RO since the September 2005 examination was dated in December 2006. As such, the Board finds that the September 2005 VA examination is too remote to accurately determine the present severity of the Veteran's service-connected diabetes mellitus, type II, and the claims file does not contain other, more recent evidence wherein the present severity of the Veteran's disability is described. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In order to comply with VA's duty to assist, the Board finds that a remand is warranted for a thorough and contemporaneous medical examination. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2009); see Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The issue of entitlement to special monthly compensation based on aid and attendance and/or housebound is inextricably intertwined with the issues on appeal. Accordingly, the Veteran's other claims on appeal must be addressed by the RO prior to the Board's consideration of the special monthly compensation claim presently on appeal. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim of entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, and in support of his claim of entitlement to service connection for a COPD. The RO must then obtain copies of the related records that are not already in the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded a comprehensive examination to determine the current severity of his service-connected diabetes mellitus, type II. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must address whether the Veteran's diabetes mellitus, type II, requires regulation of activities (avoidance of strenuous occupational and recreational activities); whether the Veteran's diabetes mellitus, type II, requires a restricted diet; whether the Veteran's diabetes mellitus, type II, has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring any hospitalizations and, if so, identify the number of such hospitalizations in any 12 month period; and whether the Veteran's diabetes mellitus, type II, requires twice per month or more frequent visits to a diabetic health care provider, and, if so, identify the frequency. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared must be typed. 3. The Veteran must be scheduled for an appropriate VA medical examination to ascertain the relationship, if any, between his COPD and his service-connected diabetes mellitus, type II. All tests deemed appropriate must be performed. All pertinent symptomatology and findings must be reported in detail. The Veteran's claims folder must be reviewed in conjunction with the examination. Following a review of the service and post-service treatment records, the examiner must specifically state whether the Veteran's current COPD is aggravated by the Veteran's service-connected diabetes mellitus, type II. A complete rationale for all opinions must be provided. If the examiner is unable to render any opinion without resorting to speculation, the examiner must provide an explanation as to why speculation is so required. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examinations was sent to the Veteran's last known address. Documentation must also be obtained and associated with the Veteran's claims file that indicates whether any notice that was sent was received or returned as undeliverable. 5. Once the above action has been completed, the RO must re-adjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran 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). _________________________________________________ JOY A. MCDONALD 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) (2009).