Citation Nr: 1237218 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-33 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for skin condition of the feet to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for hypertension to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A hearing was held on October 29, 2009, in Cleveland, Ohio, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of the hearing is in the claims file. 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 Initially, the Board observes that the November 2010 remand requested that the Veteran's Social Security Administration (SSA) records be obtained. The record reveals that the Veteran's SSA records are associated with the claims file and, therefore, the November 2010 remand directive has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the November 2010 remand also requested that examinations be provided to determine the nature and etiology of the Veteran's hypertension and skin condition of the feet. The examiners were requested to express opinions as to whether the hypertension and skin condition of the feet were causally or etiologically related to active service. In addition, the examiners were asked to provide opinions as to whether the hypertension and skin condition of the feet were caused or aggravated by the Veteran's service-connected diabetes mellitus. The Veteran was afforded VA examinations in December 2010. The examiner listed a diagnosis of hypertension. The examiner opined that diabetes did not cause or aggravate the hypertension and that hypertension was not causally or etiologically related to his active military service. The Veteran was also diagnosed with onycomycosis and tinea pedis. The examiner opined that the skin condition of the feet was not causally or etiologically related to his active service and the skin condition was not caused or aggravated by the service-connected diabetes mellitus. The examiner did not provide any rationale for the aforementioned opinions. Due to the inadequacies of the December 2010 VA examinations, the Veteran was afforded new VA examinations in March 2012. The examiner reviewed the claims file and noted that the service treatment records were received and silent for a diagnosis of hypertension. It was noted that the Veteran was diagnosed in 2002 and, therefore, it would be less likely than not that the Veteran's hypertension was diagnosed or present during his military enlistment. With respect to the skin condition, the examiner noted that the service treatment records were silent for any diagnosis of a skin condition and, therefore, it would be less likely than not that any skin condition diagnosed currently is related to the Veteran's military service. Although the March 2012 VA examiner provided an adequate opinion as to whether the Veteran's claimed disabilities are causally or etiologically related to active service, the examiner did not provide an opinion as to aggravation. As noted above, the December 2010 VA examiner's opinions were inadequate as no rationale was provided. By failing to ensure that the Veteran was afforded an adequate examination, the RO did not substantially comply with the Board's November 2010 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). As such, a remand for corrective action is required. Id. Additionally, "[o]nce VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). Accordingly, the case is REMANDED for the following action: 1. If possible, return the claims file to the examiner who provided the March 2012 opinion and ask him to provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus. In addition, the examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's skin condition of the feet was caused or aggravated by his service-connected diabetes mellitus. The examiner should also provide an opinion as to whether it is at least as likely as not that any skin condition had its onset in active service and whether it is at least as likely as not that any skin condition of the feet is causally or etiologically related to active service. The examiner should specifically note the Veteran's complaint of a skin condition in 1972, shortly after separation from active service. The examiner should provide a rationale for all expressed opinions. If it is not possible to return the claims file to the examiner who provided the March 2012 opinion, please request another opinion to determine the nature and etiology of hypertension and skin condition of the feet. The VA examiner should indicate whether it is at least as likely as not (at least a 50 percent likelihood or higher) that the Veteran's hypetension was caused or aggravated by his service-connected diabetes mellitus. The examiner should also provide an opinion as to whether it is at least as likely as not that any skin condition had its onset in active service and whether it is at least as likely as not that any skin condition of the feet is causally or etiologically related to active service. The examiner should specifically note the Veteran's complaint of a skin condition in 1972, shortly after separation from active service. The examiner should provide a rationale for all expressed opinions. In rendering the opinion please note that "aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent that is possible, the approximate level of disability before the onset of the aggravation. (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 (2011), 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. 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 appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ 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) (2011).