Citation Nr: 1030833 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 09-33 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for perirectal abscesses, claimed as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for cardiac disabilities (to include atrial fibrillation and tachycardia), claimed as secondary to diabetes mellitus, atrial fibrillation, or hypertension. 4. Entitlement to service connection for erectile dysfunction (ED), claimed as secondary to diabetes mellitus or hypertension. 5. Entitlement to service connection for anal fistula, to include as secondary to claimed jungle rot. 6. Entitlement to a rating in excess of 20 percent for diabetes mellitus. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1967 to May 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had also initiated an appeal of a denial of service connection for posttraumatic stress disorder. An interim, May 2010, rating decision granted such benefit; the Veteran's appeal of that issue is satisfied and such matter is not before the Board. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The record does not show (or suggest) that any disability for which service connection is sought was manifested in service (or for many years thereafter). The Veteran's theory of entitlement as to each of these claims is entirely one of secondary service connection. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A review of the Veteran's claims file found that pertinent (and perhaps critical) evidence remains outstanding. Specifically, on February 2008 VA Agent Orange examination, the Veteran reported that Dr. G. B. was his current primary care provider (he did not identify the disabilities treated by Dr. G. B.). As records of treatment for a disability at issue may contain information regarding the etiology of such disability and/or other pertinent information, they are essential for a clear disability picture, and must be secured. In addition, on February 2008 VA Agent Orange examination, the Veteran also reported that in 2006 he was treated for atrial fibrillation at St. Joseph's Hospital in Dickinson, South Dakota. He also reported June 2007 treatment for atrial fibrillation and diabetes at St. Joseph's Hospital in Denver, Colorado. [In an undated Compensation and Pension Medical History Form, he indicated he was treated at St. Joseph's Hospitals in both Dickinson, South Dakota and Denver, Colorado for "heart problems" and for cyst surgery.] Records of the reported treatment at St. Joseph's hospitals are also likely to contain pertinent information regarding the disabilities at issue, and must also be secured. The Veteran is advised that a governing regulation provides that where evidence (including releases to secure evidence) requested in connection with an original claim is not furnished within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Regarding the claim of service connection for cardiac disabilities (to include atrial fibrillation and tachycardia), it is not clear whether the claimed disabilities are disabilities of themselves, or whether they are symptoms of an underlying disability. On August 2008 VA examination, the diagnoses included atrial fibrillation, opined to be secondary to hypertension. Notably, the examiner indicated the Veteran's resting heart rate was 98 to 108; a diagnosis of tachycardia was not provided. Regarding the claim of service connection for ED, the above- mentioned August 2008 VA examiner opined that the ED "long antedat[ed] the appearance of diabetes and [is] not felt to be due to diabetes." While this opinion addressed whether diabetes caused the Veteran's ED, it did not address the pertinent question of whether his service-connected diabetes aggravated his ED. Hence, another examination is necessary. Regarding the claim of service connection for perirectal abscesses, on February 2008 VA Agent Orange examination, physical examination of the Veteran revealed no fissures or current cysts; no prostate examination was performed. The diagnoses included the following: "History of perianal and scrotal cysts, currently quiescent." Submitted with his claim in May 2008 was an online excerpt entitled, "Perianal abscess", in which it was stated that situations which elevate the risk of developing the disease includes diabetes. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in a claim seeking service connection a VA medical examination is necessary when there is (1) competent evidence of a current disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service- connected disability, but (4) insufficient medical evidence on file for the Secretary to make a decision on the claim. The United States Court of Appeals for Veterans Claims held that the determination as to when a VA examination/medical opinion is necessary is a "low threshold" requirement. Here, there is evidence to suggest the Veteran may have perirectal abscesses, and he has submitted evidence indicating the disability may be secondary to his diabetes (for which service connection has been established); the "low threshold" requirement under McLendon is met. Regarding the Veteran's claim for an increased rating for diabetes, what distinguishes the criteria for the current 20 percent rating for diabetes from those for the next higher (40 percent) rating is that for the 40 percent rating, regulation of activities to control diabetes is required in addition to the criteria for the 20 percent rating. The Veteran alleges his diabetes has been progressing in severity; notably, his last VA examination to assess diabetes was in August 2008, approximately two years ago. Consequently, the information regarding the manifestations of the Veteran's diabetes/restrictions due to diabetes is dated, and a contemporaneous examination is needed. As the Veteran's appeal of the rating assigned for his diabetes is from the initial rating assigned with a grant of service connection, "staged" ratings are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all providers of evaluation and/or treatment he has received for each of the disabilities at issue, and to provide releases for records from any private treatment or evaluation providers (specifically including evaluation and treatment he received from Dr. G. B., as well as those from St. Joseph's Hospitals in Denver, Colorado and in Dickinson, South Dakota). The RO should secure copies of the complete records of any evaluation or treatment the Veteran has received from all providers he identifies (to specifically include those from Dr. G. B. and from St. Joseph's Hospital). If any provider does not respond, the Veteran should be so advised, and reminded that ultimately it is his responsibility to ensure that any private records are received. 2. The RO should arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his diabetes mellitus. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. The examiner should note the regimen in place for management of the Veteran's disease, to include his dosage(s) of insulin or oral hypoglycemic agents, any dietary restrictions, and any medically required regulation of activities (avoidance of strenuous occupational and recreational activities for control of diabetes). The examiner should note whether the diabetes has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization and/or visits to a diabetic care provider, and/or progressive loss of weight and strength. 3. The RO should arrange for the Veteran to be examined by a cardiologist to determine whether or not he has chronic disability entities manifested by atrial fibrillation and tachycardia, or whether such are merely symptoms of an underlying (cardiac) disability. The examiner must review the Veteran's claims file in conjunction with the examination. Any indicated tests or studies should be completed. If it is opined that the Veteran's atrial fibrillation and/or tachycardia is a distinct disability entity (as opposed to a symptom of an underlying disability), the examiner should also opine to the following: (a) Was the atrial fibrillation (i) caused or (ii) aggravated by (increased in severity due to) the Veteran's diabetes and/or hypertension. If it is found that the atrial fibrillation was not caused, but was aggravated by the Veteran's diabetes or hypertension, the examiner should further indicate, to the extent possible, the degree of disability pathology and/or impairment that is due to such aggravation. (b) Was the tachycardia (i) caused or (ii) aggravated by (increased in severity due to) the Veteran's hypertension and/or atrial fibrillation. If the examiner determines that a chronic disability entity manifested by tachycardia was not caused, but was aggravated by the Veteran's hypertension or by atrial fibrillation (secondary to hypertension), the examiner should further indicate, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions given. 4. The RO should arrange for the Veteran to be examined by an urologist to determine the etiology of the Veteran's ED. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination, and any indicated studies or tests should be accomplished. All clinical findings should be reported in detail. Based on review of the Veteran's pertinent medical history and with consideration of sound medical principles, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's ED is either (i) caused or (ii) aggravated by (increased in severity due to) his service-connected diabetes? If the opinion is that the Veteran's diabetes aggravates his ED, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) that has resulted from such aggravation. The examiner should also opine whether the Veteran's ED is either (i) caused or (ii) aggravated by (increased in severity due to) his hypertension. The examiner must explain the rationale for all opinions given. 5. The RO should also arrange for a proctology examination of the Veteran to determine whether he has a chronic disability manifested by perirectal abscesses. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination, and any indicated studies or tests should be completed. All clinical findings should be reported in detail. The examiner should indicate whether the Veteran has perirectal abscesses, and if so opine whether it is at least as likely as not (a 50 percent or better probability) that such were either (i) caused or (ii) aggravated by (increased in severity due to) his diabetes? If the opinion is that diabetes aggravated his perirectal abscesses, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) that has resulted from such aggravation. The examiner must explain the rationale for all opinions. 6. If the development ordered above suggests any further development the RO should arrange for such development. 7. Thereafter, the RO should readjudicate the matters on appeal. If any benefit sought on appeal remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).