Citation Nr: 1007263 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-17 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for polyneuropathy, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for coronary artery disease, including carotid stenosis, to include as secondary to service-connected diabetes mellitus. 4. Entitlement to service connection for stroke, including transient ischemic attacks, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, denied the Veteran's claims set forth above. The Veteran perfected a timely appeal of these determinations to the Board. In an April 2008 decision, the Board, in pertinent part, denied the above claims. In an April 2009 Order, the U.S. Court of Appeals For Veterans Claims (Court) granted an April 2009 Joint Motion of the Veteran and the Secretary of Veterans Affairs, vacated that portion of the Board's April 2008 decision denying the above claims, and remanded the case to the Board for action in compliance with the Joint Motion. 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 The Veteran was provided VA examinations in connection with his claims in June 2003 and February 2004. The June 2003 examination report shows a diagnosis of polyneuropathy of unknown origin. It also indicates that the examiner was unable to address whether any condition was secondary to type II diabetes mellitus, as the examiner was unable to document a diagnosis of diabetes mellitus. The February 2004 examination report indicates that the Veteran had a history of transient ischemic attacks and diagnoses of carotid stenosis, hypertension, peripheral neuropathy, and questionable coronary artery disease. The February 2004 VA examiner noted that, per a neurology note, the Veteran had other etiology for his polyneuropathy besides diabetes mellitus, and expressed the opinion that the Veteran's multilevel spinal stenosis could be the cause of his symptoms rather than diabetes. Neither the June 2003 VA examiner nor the February 2004 VA examiner provided an opinion regarding the etiology of the Veteran's carotid stenosis, transient ischemic attacks, or hypertension. Specifically, neither examiner expressed an opinion as to whether any of these disorders were caused or aggravated by the Veteran's service-connected type II diabetes mellitus. Furthermore, while the February 2004 examination report indicates the opinion that the Veteran was noted to have had other etiology for his polyneuropathy besides diabetes mellitus, and that his multilevel spinal stenosis could have been the cause of his symptoms, it does not indicate an opinion as to whether diabetes mellitus was a contributory cause of the Veteran's polyneuropathy, or whether diabetes aggravated the polyneuropathy. Thus, the June 2003 and February 2004 VA examination reports do not provide adequate medical evidence to decide the issues on appeal, and new VA examinations are required to determine the nature and etiology of the Veteran's claimed disabilities, including whether any such disabilities are caused or aggravated by his service-connected diabetes mellitus. See 38 C.F.R. §§ 3.310, 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, during the pendency of this appeal, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In this case, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. On remand, the Veteran should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that informs him that a disability rating and an effective date for the award of benefits will be assigned if a claim is granted, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send the Veteran and his representative, if any, a letter that contains notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims addressed in this remand, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The Veteran should be afforded an appropriate VA examination or examinations to determine whether he has hypertension, polyneuropathy, coronary artery disease, including carotid stenosis, and transient ischemic attacks that is/are related to his service-connected diabetes mellitus. All necessary special studies or tests should be performed if deemed warranted by the examiner. It is imperative that the examiner, or examiners, review the evidence in the claims folder, including a complete copy of this REMAND, and acknowledge such review in the examination report. For each diagnosed disorder, the examiner should offer an opinion as to whether it is as likely as not (whether there is a 50 percent or greater probability) that such disorder is attributable to the Veteran's service- connected diabetes mellitus, to include whether diabetes mellitus has increased the severity of the disorder beyond its natural progression. The examiner should set forth a complete rationale for any opinion expressed, which should be based upon medical principles and evidence in the claims file. 3. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO/AMC should readjudicate the Veteran's claims. If any determination remains adverse, the Veteran and his representative must be furnished a supplemental statement of the case. 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. 2009). _________________________________________________ Alexandra P. Simpson 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) (2009).