Citation Nr: 1301537 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-31 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for autoimmune pancreatitis, claimed due to Agent Orange herbicide exposure or, in the alternative, secondary to service-connected diabetes mellitus, type II. 2. Entitlement to an initial rating greater than 20 percent for diabetes mellitus, type II. 3. Entitlement to an initial rating greater than 20 percent for peripheral neuropathy of the left lower extremity (LLE). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2008 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for birth defects of a dependent child (son), due to Agent Orange exposure has been raised by the record, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. A claim of TDIU is inferred in claims for higher initial ratings where the Veteran claims his disability affects his employability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran claims he used to work in construction, but can no longer work because of his disabilities. Thus, the issue of entitlement to a TDIU has been raised by the record here. 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 The Veteran claims he is unemployable due to multiple disabilities incurred as a result of his service in Vietnam, to include diabetes, peripheral neuropathy, and claimed auto-immune pancreatitis. Initially, the Board notes the claims were last adjudicated by the AOJ in an August 2010 supplemental statement of the case (SSOC). Since that time, the claims folder (to include Virtual VA) includes additional VA outpatient treatment records through December 2011. The additional medical evidence is non-duplicative and relevant to the claims on appeal here. The Veteran has not waived AOJ review of the additional evidence. On remand, the additional evidence must be considered by the AOJ. See 38 C.F.R. § 19.37(a) (2012); see also 38 C.F.R. § 20.1304 (2012) (if an SOC is prepared before the receipt of further evidence, an SSOC must be issued to the Veteran, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal). As to all claims, in light of the remand, the AOJ is to take this opportunity to obtain recent VA outpatient treatment records dated since December 2011. Service Connection (Pancreatitis) The Veteran was hospitalized in 2007, decades after service, for auto-immune pancreatitis and has been treated for the condition ever since. He believes he developed pancreatitis either due to in-service Agent Orange exposure or, in the alternative, as a complication of his diabetes mellitus, type II. In light of the circumstances of the Veteran's service, which included service in the country of Vietnam during the Vietnam War Era, exposure to Agent Orange herbicides is conceded. See 38 C.F.R. § 3.307(a)(6) (2012). Auto-immune pancreatitis, however, is not one of the diseases presumptively associated with Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2012). In support of his claim, however, the Veteran submitted on-line medical literature indicating a possible relationship between pancreas-related illness and diabetes mellitus, type II. Some of the articles also addressed Agent Orange herbicide exposure. A disability which is either due to or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). The Veteran was afforded a VA examination in April 2009 where the examiner diagnosed the Veteran with auto-immune pancreatitis, but found an opinion with respect to etiology not possible without resorting to mere speculation. Specifically, the examiner found the medical literature does not clarify whether there is a causal link between autoimmune pancreatitis and Agent Orange exposure or diabetes mellitus, type II. This examination was done prior to the Veteran submitting his own internet research. Clearly, then, the examiner did not specifically reconcile or consider the medical literature provided by the Veteran. Indeed, the examiner did not elaborate or explain the opinion at all. Based on what was submitted by the Veteran, it appears there is at least some medical literature suggesting a link between pancreas-related disease and diabetes and/or Agent Orange exposure. A VA medical opinion from a gastrointestinal specialist is warranted to address and reconcile the question of etiology. Thus, the Board finds it necessary to remand this claim. Higher Initial Ratings (Diabetes and Peripheral Neuropathy of the LLE) The Veteran claims his diabetes and peripheral neuropathy of the LLE are worse than initially rated. Specifically he claims these conditions preclude his ability to work and affect every aspect of his daily life. With regard to rating claims, such as the diabetes claim on appeal here, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination specifically for his diabetes in March 2009, over three years ago, and for his peripheral neuropathy in June 2010, over two years ago. In a November 2012 statement from the Veteran's representative, his representative notes the Veteran specifically claims his diabetes and peripheral neuropathy have "intensified" since the last VA examinations and, therefore, he desires new examinations. Since the last two VA examinations, the record contains voluminous VA outpatient treatment records. In light of the Veteran's statement and the continued treatment for these conditions, new VA examinations are indicated. Therefore, the Board also finds it necessary to remand these to rating claims for additional VA examinations. TDIU As noted above, a TDIU claim is inferred based on the Veteran's contentions. See Rice, 22 Vet. App. at 447. The RO has not yet developed or adjudicated the TDIU aspect of the Veteran's rating claims, and therefore relevant development is indicated. It is further noted the TDIU claim is "inextricably intertwined" with the other claims on appeal here. Harris v. Derwinski, 1 Vet. App. 181 (1991). Thus, on remand, the AOJ must adjudicate the TDIU issue after full development and adjudication of the Veteran's diabetes, peripheral neuropathy, and pancreatitis claims. Accordingly, the case is REMANDED for the following actions: 1. Send a new notice letter to the Veteran and his representative. The letter should notify the Veteran of the information and evidence necessary to substantiate the claim for a TDIU. The letter should contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain the Veteran's more recent VA medical records dated since December 2011. All efforts to obtain VA records are to be fully documented, and the VA facility must provide a negative response if records are not available. 3. After all records are obtained, to the extent available, obtain a VA medical opinion with a gastrointestinal specialist to clarify the likely etiology of the Veteran's auto-immune pancreatitis. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the review of the record, the VA specialist should address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pancreatitis is directly related to the Veteran's active military service, to include Agent Orange herbicide exposure (which is conceded). (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pancreatitis is caused or aggravated by his service-connected diabetes mellitus. The VA specialist must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The VA specialist is to address the medical literature supplied by the Veteran in the record and reconcile it with whatever opinion rendered. A VA examination should be scheduled in connection with this claim only if it is determined to be necessary by the VA specialist to answer the questions. 4. Then, schedule the Veteran for appropriate VA examination(s) to ascertain the current severity of his diabetes mellitus, type II and peripheral neuropathy of the LLE. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must respond to the following: (a) Diabetes: Ascertain the current severity of the Veteran's diabetes mellitus, type II, to include specifically indicating whether the Veteran's diabetes requires restriction of activities (avoidance of strenuous occupational and recreational activities) for control, and/or episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations a year. The examiner is also to indicate the frequency of visits to a diabetic care provider. The examiner must also identify all other complications resulting from the Veteran's diabetes mellitus. (b) Peripheral Neuropathy: Ascertain the current severity of the Veteran's peripheral neuropathy of the LLE, specifically identifying the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe). (c) TDIU: The examiner(s) is(are) also requested to provide an opinion as to whether the Veteran's service-connected disabilities either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. To assist with this inquiry, the VA must provide the examiner with a list of service-connected disabilities after all development is complete. The examiner(s) must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Finally, readjudicate the Veteran's claims on appeal, including the issue of entitlement to a TDIU. If the claims remain denied, issue an SSOC to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).