Citation Nr: 1318185 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-12 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected sarcoidosis, with a history of subjective complaints of fibromyalgia and polyneuropathy. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to service-connected sarcoidosis, with a history of subjective complaints of fibromyalgia and polyneuropathy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to August 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claims. In his April 2008 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge at the VA Central Office in Washington, DC. In May 2013, a hearing was scheduled, but the Veteran failed to report. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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. REMAND The Board observes that the Veteran was most recently afforded a VA examination for his sarcoidosis and diabetes mellitus in October 2007. At that time, the VA examiner noted that full records from Scott Air Force Base were unavailable for review. A review of the record indicates that these records have since been associated with the Veteran's claims folder. Notably, these records document complaints of and treatment for the Veteran's sarcoidosis and diabetes during the period of appeal through September 2008. The Board adds that private treatment records have been associated with the Veteran's claims folder since the October 2007 VA examination which document treatment for the Veteran's sarcoidosis and diabetes. Based on the absence of review of relevant medical treatment records, the length of time that has elapsed since the October 2007 VA examination, and the presence of more current treatment records pertaining to the Veteran's diabetes and sarcoidosis which have been associated with his claims folder, the Board finds that the October 2007 VA examination is inadequate for evaluation purposes. In light of the foregoing, the Board further finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected sarcoidosis and to determine the etiology of his diabetes mellitus. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). VA regulations provide that service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In addition, if a nonservice-connected disorder is aggravated by a service-connected disorder, the Veteran is entitled to compensation for the degree of increased disability (but only that degree) over and above the degree of disability existing in the absence of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. Crucially, the October 2007 VA examiner did not render an opinion as to whether the Veteran's diabetes mellitus was aggravated by his service-connected sarcoidosis. As such, a VA opinion is additionally necessary to address whether the Veteran's diabetes mellitus is aggravated by his service-connected sarcoidosis. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claims. The Veteran must then be given an opportunity to respond. 2. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the current level of severity of his service-connected sarcoidosis as well as the etiology of his diabetes mellitus, type II. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination. The examiner is asked to perform all necessary tests and studies, and describe in detail all symptomatology associated with the Veteran's sarcoidosis. This should include a discussion of the following: a. Whether there is pulmonary involvement and whether this requires systemic high dose corticosteroids for control. b. Whether there is cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. Additionally, based on review of the Veteran's medical history and examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus is caused or aggravated by his sarcoidosis. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Aggravation means that a disability was permanently worsened beyond its normal progression, due to the treatment. If the examiner finds that the Veteran's diabetes is aggravated by his sarcoidosis, then he/she should quantify the degree of aggravation. A complete explanation must be provided for all opinions offered, and the examiner must fully consider and discuss the Veteran's lay statements when offering an opinion. 3. When the development requested has been completed, the case should be reviewed 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 (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).