Citation Nr: 1030728 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 08-37 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus. 3. Entitlement to an initial compensable evaluation for hepatitis C. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from October 1980 to October 1984, March 1985 to April 1988, and November 2001 to July 2002. Personnel records also indicate that the Veteran enlisted in the Air Force National Guard in August 1991 and had 15 years, 4 months, and 6 days of service. This matter comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in pertinent part, granted service connection for hepatitis C with an initial disability rating of 0 percent and an effective date of January 31, 2007, and denied entitlement to service connection for diabetes mellitus and peripheral neuropathy as secondary to diabetes mellitus. A hearing was held in January 2009 at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus has been re- characterized to comport to the evidence of record, particularly the Veteran's original February 2007 service connection claim. In May 2009 the Veteran's current claims were remanded for additional development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND I. Service Connection Claims The Veteran seeks service connection for diabetes mellitus and peripheral neuropathy disabilities. At his January 2009 hearing the Veteran testified that he was diagnosed with diabetes mellitus in 1997, and was told by his doctors that his peripheral neuropathy is related to his diabetes mellitus. Following the May 2009 Board remand, two VA examiners offered opinions regarding the etiology of the Veteran's diabetes mellitus. An August 2009 VA examination report notes that the Veteran was diagnosed with diabetes mellitus in 1997 and that the Veteran's mother died of diabetes and his sister has diabetes. The examiner noted that the Veteran has a family history of diabetes and hypertension, which are risk factors for diabetes. The examiner opined that the Veteran's diabetes mellitus is as likely as not related to hypertension and family history of diabetes and not due to military service. A September 2009 VA examination report notes that the Veteran was diagnosed with diabetes mellitus in 1995-1996, and that he was diagnosed with diabetes while in the Air National Guard and within 5 years of discharge from the military. The examiner opined that, as such, it is related to his military service and the cause of his neuropathy is more than likely secondary to diabetes. Additionally, the Veteran submitted a private medical opinion dated in April 2009. It notes that the Veteran is an unlikely candidate for diabetes of any type, based on his weight, lifestyle, and family history. He has certainly been exposed to various unique stressors on military duty, including immunizations, extreme conditions such as a heat injury, deployments, and various toxic exposures. The private medical opinion concluded it is more likely that the Veteran's diabetes is a direct result of the physical stress/injury of military service. The Board notes that the 3 medical opinions of record widely differ in their conclusions, and that the August 2009 and April 2009 medical opinions are based on completely different factual findings regarding the Veteran's family history of diabetes. Therefore, a new VA examination should be conducted to reconcile the VA and private medical opinions and determine whether the Veteran's diabetes mellitus is secondary to his service connected hepatis C pursuant to 38 C.F.R. § 3.310 or was aggravated by service pursuant to 38 U.S.C.A. § 1153. See 38 C.F.R. § 3.159 (c) Because the Veteran's service connection claim for diabetes mellitus is being remanded, and because adjudication of that claim may impact the adjudication of the Veteran's claim of entitlement to service connection for peripheral neuropathy, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Given the foregoing, the Veteran's peripheral neuropathy claim also must be remanded. II. Increased Rating Claim The Veteran seeks an initial compensable evaluation for hepatitis C. The May 2009 Board remand directed the VA to schedule the Veteran for a VA medical examination to assess the current severity of his hepatitis C disability. Instead of scheduling the Veteran for a VA examination for his hepatitis C disability, VA relied on an August 2009 VA examination which was conducted to determine the etiology of the Veteran's claimed diabetes mellitus. Although the August 2009 VA examination discusses the Veteran's hepatitis C, it does not discuss the specific criteria required by 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 for a higher rating for hepatitis C. Hence, the August 2009 VA examination is not adequate to rate the Veteran's service-connected hepatitis C and a new medical examination is needed prior to appellate review. See 38 C.F.R. § 3.159(c)(4); see also Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). The appellant is hereby notified that it is his responsibility to report to any scheduled examination(s) and to cooperate in the development of the case, and that the consequences of not meeting his responsibilities could include denial of his claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination with an examiner other than the one who conducted the August 2009 examination to determine the etiology of his diabetes mellitus. The examiner is to accept as fact that the Veteran was first diagnosed with diabetes mellitus in 1997. The examiner should provide the following opinions: a) Is it at least as likely as not that the Veteran's diabetes mellitus was caused or aggravated by his service connected hepatitis C. b) If not, the examiner is to provide an opinion as to whether the Veteran's pre- existing diabetes mellitus clearly and unmistakably was not aggravated by any incident during his period of active service from November 2001 to July 2002, including the stress of service. If it was aggravated, the examiner was to provide an opinion as to whether such aggravation was due to the natural progression of the pre-existing diabetes mellitus. A complete rationale must be provided for all opinions. The claim folder must be made available to the examiner for review in conjunction with the examination. The examiner must note and specifically address in his opinions the April 2009 private medical opinion, the August and September 2009 VA examination reports, and the Veteran's service treatment records (STRs). 2. Schedule the Veteran for a VA medical examination for the purpose of determining the current severity of his service-connected hepatitis C. The examiner must specifically address whether the Veteran's hepatitis C manifests fatigue, malaise, and anorexia, or incapacitating episodes. The duration of any incapacitating episodes in the past 12 month period should be described, and the occurrence, severity, and effects of any identified fatigue, malaise, and anorexia, must be thoroughly described. See 38 C.F.R. § 4.114, DC 7354. A complete rationale must be provided for all opinions. The claim folder must be made available to the examiner for review in conjunction with the examination. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claims should then be readjudicated and if the claim of service connection for diabetes mellitus is granted the RO/AMC is instructed to re-adjudicate the claim of service connection for peripheral neuropathy and refer to the September 2009 VA examination report. If any of the claims remain denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. 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). _________________________________________________ RONALD W. SCHOLZ 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).