Citation Nr: 1319048 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-10 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for dental treatment purposes for total edentia claimed as secondary to the Veteran's service-connected diabetes mellitus. 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 4. Entitlement to a rating in excess of 30 percent for diabetic retinopathy, with glaucoma and cataracts; status post right eye cataract extraction with lens implant. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to March 1, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1963 to October 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2006 (dental claim), August 2008 (diabetes mellitus, eye disability. and TDIU claims) and March 2009 (hypertension) rating decisions of the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). [The August 2008 rating decision denied the Veteran a TDIU rating. A September 2011 rating decision increased ratings for the Veteran's service connected disabilities to the extent that the combined rating became 100 percent, effective March 1, 2011. The Veteran's claim for a TDIU rating is recharacterized to reflect that the claim for such rating from March 1, 2011 is moot, but that he continues to seek a TDIU prior to that date. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, a review the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of his claims. Regarding the dental claim, the opinions provided in the June 2006 VA examination and in a July 2006 addendum are based on an incomplete record. In June 2006, the VA examiner noted that there were no dental records available for review. In July 2006, the VA examiner noted a December 2004 report and also noted that there was ere no dental history or diagnosis available (for comparison purposes). However, the Veteran's STRs show dental treatment from August to November 1964. As the VA examiner appears to have been unaware of the dental treatment records among the STR's, another examination that encompasses review of/familiarity with the entire record is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the rating for diabetes mellitus , the most recent examination of record was in July 2009 VA examination. In an April 2010 statement, the Veteran reported that his physician has since increased his insulin dosage, and recommended a restricted diet and regulation of activities, suggesting that the diabetes mellitus had increased in severity in the interim. Accordingly, a contemporaneous examination is indicated. Furthermore, pertinent treatment records appear to be outstanding. A January 2003 VA treatment record shows that the Veteran was to visit the dental clinic that day. A December 2004 dental treatment record (submitted by the Veteran) does not identify the provider or indicate whether (or where) the Veteran has received additional care. He refers to a Dr. Coaraia. This suggests that there may be pertinent dental records that are outstanding. Also regarding diabetes, it is not clear from the record whether the physician mentioned in an April 2010 statement is a private or VA provider. Translated medical records show that the Veteran sought treatment from a Dr. Martinez. Previous attempts so secure records of treatment by a Dr. Martinez proved unsuccessful. Regarding hypertension and the rating for retinopathy, an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a SOC is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must explain the basis for the decision to the claimant in a SOC, and the appellant must then complete the process by timely-filing a substantive appeal. See 38 C.F.R. §§ 20.200, 20.201 and 20.202. In March 2009, the RO declined to reopen a claim of service connection for hypertension and denied an increased rating for the Veteran's service-connected eye disability . While the Veteran's subsequent (December 2009) communication indicates he specifically disagreed with the August 2008 rating decision, it nonetheless serves as a timely NOD with the March 2009 rating decision. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. The Veteran is advised that his claims to reopen a claim of service connection for hypertension and seeking an increased rating for retinopathy are not before the Board at this time, and will be before the Board only if he timely files a substantive appeal after an SOC is issued. As the issue of TDIU (prior to March 1, 2011) is inextricably intertwined with the other issues being remanded, consideration of the TDIU claim must be deferred pending resolution of the other matters. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of all treatment or evaluation he has received for diabetes mellitus and dental problems, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure any private records of such treatment or evaluation. Of particular interest are records of any additional dental treatment he received from the provider of his December 2004 treatment, from Dr. Coaraia. and from VA; and the treatment he received for diabetes mellitus from Dr. Martinez, from VA, and from the unidentified provider mentioned in the Veteran's April 2010 statement. The RO should obtain complete clinical records of all such treatment and evaluations from the identified sources. If any private provider does not respond to the RO's request for records identified, the Veteran should be so advised, and advised that ultimately it is his responsibility to ensure that such records are received. 2. The RO should then arrange for a dental examination of the Veteran to determine the likely etiology of his total edentia. The provider must review the record and provide an opinion that encompasses a review of the STRs, and responds to the following: Based on the factual evidence of record, what is the most likely etiology for the Veteran's total edentia? Specifically, is it at least as likely as not (a 50 percent or better probability) that the total edentia was either (a) caused or (b) aggravated by (increased in severity due to) his service-connected diabetes mellitus II? The VA examiner must explain the rationale for all opinions. 3. The RO should also arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his diabetes mellitus. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. All findings should be reported in detail, and any indicated tests or studies should be completed. The findings must specifically include whether or not the diabetes requires insulin, restricted diet and regulation of activities. 4. The RO should then review the record and readjudicate the service connection for dental disability (for treatment purposes) claim, and the claims for an increased rating for diabetes mellitus and for a TDIU rating (in light of the determinations made on the other pending claims/appeals, after any further development indicated is completed). If any remains denied, the RO should issue an appropriate supplemental SIC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 5. Regarding the claim to reopen a claim of service connection for hypertension and the claim for an increased rating for service connected eye disability, the RO should issue an appropriate SOC addressing such matters. The Veteran and his attorney must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in either matter, he must submit a timely substantive appeal. If he timely perfects an appeal in the matters, they should be returned to the Board for appellate consideration. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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).