Citation Nr: 1313337 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-10 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which granted service connection for diabetes mellitus and assigned an initial 20 percent evaluation for that disability, effective March 3, 2005. The Veteran timely appealed that assigned initial evaluation. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) and a Board hearing before a Veterans Law Judge in May 2008 and May 2011, respectively; transcripts of those hearings are associated with the claims file. This case was initially before the Board in September 2011, when it was remanded for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. The Board notes that the Veterans Law Judge who held the Veteran's hearing in May 2011 has retired from the Board; in a May 2012 letter, the Veteran was informed that the Veterans Law Judge was no longer employed by the Board and of his right to a hearing before another Veterans Law Judge. As no response to that letter has been received, the Board will proceed on the evidence of record, without the benefit of a further hearing, at this time. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the previous remand, the Board asked for the Veteran to be afforded another VA examination; such was accomplished in November 2011. The Veteran's various separately-compensable complications of diabetes, which are not before the Board at this time, were also evaluated, including: hypertension, erectile dysfunction, and bilateral lower extremity peripheral neuropathy. The Board notes that the evidence additionally demonstrates that the Veteran's cardiomegaly (enlarged heart) is a complication of his diabetes and associated hypertension. The Board notes that Diagnostic Code 7913 requires that complications be separately evaluated unless they are noncompensable or used to support a 100 percent evaluation. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2012). It does not appear that the RO has addressed the Veteran's cardiac complication in the April 2012 supplemental statement of the case, and therefore, the Board finds that a remand is necessary in order for such to occur. Moreover, the Board notes that the Veteran's lay statements, particularly his April 2007 notice of disagreement, alleged that he had a "decrease in vision" as a result of his diabetes. Private treatment records from January 2007 and February 2008 demonstrate that the Veteran did not have diabetic retinopathy. While the Board acknowledges that the November 2011 examiner did not check the box noting any diabetic retinopathy, it does not appear that any examination to determine whether such actually existed was performed during that examination; or, if it was, such was not attached to the examination report. Therefore, on remand, the Veteran should be afforded another VA examination for his diabetes and all potential complications thereof, which have not been separately evaluated, so that his disability evaluation can be adequately assessed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c) (West 20o2); 38 C.F.R. § 3.159(b) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Notably, in the September 2011 remand, the Board instructed that VA treatment dated since July 2008 should be obtained. It does not appear that these records were requested. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Thus, the records should be obtained to comply with the September 2011 remand. Lastly, the claim was most recently addressed by the RO in an April 2012 supplemental statement of the case (SSOC), which was mailed to the Veteran and his representative. The SSOC that was mailed to the Veteran was returned to sender later that month. It appears that the zip code was also used as the P.O. Box for the mailing address. When a SSOC is issued, it is to be furnished to both the Veteran and his representative. 38 C.F.R. § 19.31 (2012). The SSOC will be forwarded to the veteran's latest address of record. See 38 C.F.R. § 19.30 (2012) (pertaining to statements of the case). On remand, the April 2012 SSOC should be sent to the Veteran's correct mailing address. Accordingly, the case is REMANDED for the following actions: 1. Forward a copy of the April 2012 SSOC to the Veteran at his current address. 2. Obtain any relevant VA treatment records from the Honolulu VA Medical Center, or any other VA medical facility that may have treated the Veteran, since July 2008 and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his diabetes mellitus and any complications thereof, which are not already of record, particularly any records from Hilo Family Medical Center and Dr. B.K.F. since November 2008. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Thereafter, schedule the Veteran for a VA diabetes examination with an appropriate examiner in order to determine the current nature and severity of his diabetes mellitus and associated complications. (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 claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims folder and examination of the Veteran, the VA examiner is asked to describe the symptomatology and complications associated with diabetes mellitus, to include any peripheral neuropathy of his upper extremities, cardiac conditions including cardiomegaly, and eye conditions (alleged as decreased vision). The VA examiner is specifically asked to state whether the Veteran: (a) Is restricted in his activities due to his diabetes, and if so whether such restrictions include avoidance of strenuous occupational and recreational activities; (b) Uses insulin or not, and if so, how many daily injections are required; (c) Has progressive loss of weight or strength due to diabetes; (d) Has a restricted diet; and, (e) Has had any episodes of ketoacidosis or hypoglycemic reactions which necessitated either (1) hospitalization, and if so, how many hospitalizations per year such episodes required; or, (2) regular treatment by a diabetic care provider and if so, the frequency of such treatment that was necessary. With regards to the Veteran's allegations of peripheral neuropathy of the upper extremities, the VA examiner should perform all necessary neurological examinations. If any peripheral neuropathy of his upper extremities is found, the examiner should so evaluate the severity of that condition and opine whether such is a complication associated with the Veteran's diabetes and its associated complications. In regards to the Veteran's allegations of decreased vision, the VA examiner should perform all necessary eye examinations. Specifically, the Veteran's visual acuity should be tested. The VA examiner should also provide a visual field test should such a test be deemed necessary by the VA examiner. If such test is not determined necessary, the VA examiner should so state and explain why it is not necessary in this case (e.g., a reduced visual field is not a symptom or complication associated with the Veteran's decreased vision complaints). The VA examiner is also asked to perform all necessary examinations with regards to the Veteran's cardiac conditions, including the noted cardiomegaly which is associated with the Veteran's diabetes, in order to determine the severity of that condition. Finally, the examiner is asked to further state and evaluate any other complication of the Veteran's diabetes which is not currently separately evaluated, or noted above. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Finally, following the above development and any other necessary development, review the claims file and readjudicate the Veteran's claim for increased initial evaluation of his diabetes mellitus and entitlement to separate evaluations for any currently-noncompensable complications, including cardiomegaly. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a supplemental statement of the case and give them the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 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).