Citation Nr: 1003597 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 07-10 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to service connection for peripheral vascular disease, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: David E. Boelzner, Attorney WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the issue of entitlement to service connection for peripheral vascular disease for further development in May 2008. That development has since been completed. In addition, the Board issued a decision in May 2008 denying, in pertinent part, service connection for diabetes mellitus and for posttraumatic stress disorder (PTSD). The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a July 2009 Order, the Court vacated the May 2008 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). A hearing was held on October 19, 2007, by means of video conferencing equipment with the appellant in Louisville, Kentucky, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Reasons for Remand: To afford the Veteran a VA examination, to develop and adjudicate the claim for service connection for a psychiatric disorder under a recent Court holding, and to adjudicate an inextricably intertwined issue. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In this case, the Veteran was afforded a VA examination in May 2005 in connection with his claim for service connection for diabetes mellitus. However, the parties to the Joint Motion found that the Board failed to ensure that the May 2005 VA examination was adequate. In this regard, they indicated that there was no rationale for the opinion and that the examiner summarily concluded that the pancreatectomy was the cause of the Veteran's diabetes mellitus. There was no discussion of why the pancreatectomy was believed to be the cause rather than herbicide exposure. It was also noted that the Veteran's treatment records only revealed a temporal relationship between the October 2004 Whipple procedure and the diabetes and did not actually attribute the disorder to the procedure itself. Therefore, the Board finds that another VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any diabetes mellitus that may be present. In addition, the Board observes that the issue of entitlement to service connection for a psychiatric disorder was initially adjudicated as entitlement to service connection for PTSD. The parties to the Joint Motion noted that the Veteran did not have a current diagnosis of PTSD, but that he had been assessed as having an adjustment disorder with anxiety in June 2005. They found that the Board failed to consider, develop, and adjudicate the issue of service connection based upon that diagnosis. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). Therefore, the Board must remand the issue of entitlement to a psychiatric disorder for development and adjudication. The Board further notes that a decision on the claim for service connection for diabetes mellitus could change the outcome of the Veteran's claim for service connection for peripheral vascular disease. In this regard, the Board observes that the Veteran has contended that his peripheral vascular disease is secondary to his diabetes mellitus. As such, the service connection claim for peripheral vascular disease is inextricably intertwined with the diabetes mellitus claim that is already being remanded. For this reason, the issue of entitlement to service connection for diabetes mellitus must be resolved prior to resolution of the issue of entitlement to service connection for peripheral vascular disease. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO to adjudicate the inextricably intertwined issue. Therefore, in order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any current diabetes mellitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records and post- service medical records. It should be noted that the Veteran was exposed to certain herbicide agents, including Agent Orange, during his military service. Diabetes mellitus is one of the diseases presumed to be associated with herbicide exposure, but there is some evidence showing that the disorder may have instead developed as a result of the Whipple procedure performed in October 2004 to treat his nonservice-connected familial adenosis polyposis. The examiner should state whether it is at least as likely as not that the Veteran currently has diabetes mellitus that is due to his herbicide exposure in service or is otherwise causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After completing the above action, the RO should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph. 3. The RO should develop the Veteran's claim for service connection for a psychiatric disorder, including all necessary notification and assistance. After completing all appropriate development, the RO should adjudicate the claim in accordance with Clemons v. Shinseki, 23 Vet. App 1 (2009). 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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).