Citation Nr: 1237209 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-12 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for glaucoma as secondary to service-connected diabetes mellitus (DM). 2. Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus (DM). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from December 1964 to December 1968 and from August 8, 1981 to August 22, 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating determination of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The Detroit, Michigan, RO has now assumed jurisdiction of the claims. In April 2008 and January 2009, the Board remanded this matter for additional development. In a December 2010 decision, the Board denied service connection for glaucoma and erectile dysfunction as secondary to the service-connected DM. Thereafter, the Veteran appealed the decision to the United States of Court of Appeals for Veterans Claims (Court). In a March 2012 single judge memorandum decision, the Court set aside the December 2010 Board decision and remanded the matter for further adjudication in accordance with the Court's decision. As a result of the Court's actions, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In its March 2012 memorandum decision, the Court noted that the Veteran contended that the Board relied upon inadequate medical reports when rendering its decision. The Court found that the record supported the Veteran's contentions. As to the glaucoma claim, the Court indicated that it was unclear why test results from a 2003 medical report could support a medical conclusion in 2008 that the Veteran's glaucoma was not aggravated by his DM. The Court noted that the 2003 report indicated that the development of diabetic retinopathy or change in hemoglobin readings could indicate that glaucoma was aggravated by DM. The Court observed that while there was no such evidence in 2003, the record did not reflect any testing for diabetic retinopathy in 2008, and the Board did not otherwise address whether additional testing was performed or why it was not properly needed to adjudicate the claim. As to the claim for erectile dysfunction, the Court noted that the Board relied on a 2004 medical report and a 2008 addendum to support its decision. It observed that the 2004 report reflected the examiner's opinion that the Veteran's erectile dysfunction more likely than not was related to his hypogonadism, while the 2008 addendum stated that it was impossible to state that the Veteran's diabetes was more than 50 percent cause of his erectile dysfunction. The Court also noted that the Board appeared to rely on a 2009 medical examination report in support of its finding that there was no evidence that DM caused or aggravated erectile dysfunction; however, the 2009 report appeared to conflict with the 2004 report, wherein the same medical examiner listed DM as affecting sexual function. The Court observed that the Board did not explain this apparent inconsistency; as such judicial review was frustrated and remand was warranted. In light of the Court's holding, the Board is remanding this matter for further development, to include VA examinations to determine the nature and etiology of any current glaucoma and erectile dysfunction, and their relationship, if any, to the Veteran's service-connected DM. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran for information as to where he has been treated for his diabetes, glaucoma, and erectile dysfunction since 2008. Ask him to complete releases authorizing VA to request any private treatment records, then request such records, notifying the Veteran if any private records are not obtained. Obtain any records of VA treatment indicated by the Veteran. 2. After obtaining as many of the medical records the Veteran identifies as are available, he should be scheduled for VA examinations to determine the nature and etiology of any current glaucoma and erectile dysfunction. The claims folder and a copy of this remand must be made available to the examiner for review and the examiner must note such review in his/her report. The examiners are specifically requested to render opinions as to: * whether it is at least as likely as not (50 percent probability or greater) that the Veteran's glaucoma, if found to be present, is caused or aggravated (worsened) by his service-connected DM. * whether it is at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction, if found to be present, is caused or aggravated (worsened) by his service-connected DM. Complete detailed rationale must be provided for each opinion that is rendered. 3. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. 4. After completing the requested actions, and any additional notification and/or development needed, readjudicate the remaining claims on appeal. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future 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). 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. 2011). _________________________________________________ MICHELLE L. KANE 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) (2011).