Citation Nr: 1312137 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-44 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder, to include foot disease and/or foot arthritis. 2. Entitlement to service connection for bilateral knee arthritis. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange. 4. Entitlement to service connection for scleritis, to include as due to diabetes mellitus, type II. 5. Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for a back disorder. 8. Entitlement to service connection for bilateral shoulder arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO). 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 During his September 2011 hearing before the Board, the Veteran identified additional private medical treatment records which have not yet been obtained and which may be relevant to his claims for service connection. Specifically, the Veteran reported that he sought treatment for all medical ailments from the University of Illinois Hospital from 1969 through 1987. He noted treatment for problems with his feet, eyes, knees, shoulders, back, and "everything" from the University of Illinois Hospital. Although he acknowledged that he was not diagnosed with scleritis, hypertension, or diabetes mellitus until he began treatment at the Henry Ford Hospital in the early 1990s, he could not rule out the possibility that the records from the University of Illinois Hospital might show symptoms of those disabilities, such as eye complaints, high blood pressure, or elevated glucose readings, prior to their diagnosis. Accordingly, the RO should request and obtain these private medical treatment records. Additionally, the Veteran was provided with VA examinations in May 2007 with regard to his scleritis and diabetes mellitus, type II. However, review of the examination reports reflects that they are inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Specifically, while the examiner who provided the diabetes mellitus examination concluded in a September 2007 addendum that a diagnosis of diabetes mellitus, type II, was appropriate, the examiner did not provide any opinion as to the etiology of the Veteran's diabetes, to include whether it was related to his in-service exposure to Agent Orange. The examiner who provided the eye examination noted that there is no known correlation between diabetes mellitus and scleritis, but did not provide an opinion as to whether the Veteran's scleritis was directly related to service, to include his reports of eye irritation and burning during service in Vietnam. Accordingly, the Veteran should be provided with new VA examinations addressing the etiology of his diabetes mellitus, type II, and scleritis. Last, after any additional private treatment records identified by the Veteran have been obtained, the Veteran should be provided with VA examinations addressing the existence and etiology of his claimed bilateral foot disease and arthritis, bilateral knee arthritis, hypertension, tinnitus, back disorder, and bilateral shoulder disorder. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for all of his claimed disabilities since service discharge, to specifically include all treatment records from the University of Illinois Hospital. After obtaining the required authorizations where necessary, the RO must attempt to obtain copies of the related medical records that are not already in the claims file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain the named records, the RO is unable to secure same, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be provided with VA examinations to determine the existence and etiology of his bilateral foot disease and arthritis, bilateral knee arthritis, diabetes mellitus, type II, scleritis, hypertension, tinnitus, back disorder, and bilateral shoulder arthritis. A copy of the claims file, all electronic records, and this remand must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon the evidence of record, to include the service treatment records, the post-service medical evidence, the Veteran's lay statements, and the Veteran's testimony before the Board, the VA examiners must provide opinions as to whether it is at least as likely as not that the Veteran's bilateral foot disease and arthritis, bilateral knee arthritis, diabetes mellitus, type II, scleritis, hypertension, tinnitus, back disorder, and/or bilateral shoulder arthritis are/is directly related to service, to include exposure to Agent Orange. The examiners must also provide opinions as to whether it is at least as likely as not that the Veteran's scleritis and/or hypertension were/was caused or aggravated by his diabetes mellitus, type II. A complete rationale for all opinions must be provided. If the examiner(s) cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Any additional development of the evidence deemed necessary to provide the requested opinion must be identified. 3. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination(s), documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the Veteran's claims. If any of the claims are denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2012). _________________________________________________ U. R. POWELL 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) (2012).