Citation Nr: 1319534 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-33 588 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to March 1986, and from May 5, 1994 to May 20, 1994. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2007 rating decision in which the RO, inter alia, granted service connection and assigned an initial, 20 percent rating for diabetes mellitus, type II, effective March 2005. The Veteran filed a notice of disagreement in March 2008. In August 2009, the RO issued a statement of the case and, in September 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals ). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims, which will be considered in the adjudication of this claim. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. The Veteran's service-connected diabetes mellitus, type II, is currently rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Under that diagnostic code, diabetes mellitus requiring insulin or an oral hypoglycemic agent and a restricted diet warrants a 20 percent rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, warrants a 60 percent rating. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, warrants a 100 percent rating. Id. The first and only VA examination scheduled in conjunction with the Veteran's diabetes mellitus claim was conducted in May 2007. At that time, the Veteran was treating his diabetes mellitus with long-acting insulin, oral hypoglycemic agents, and a restricted diet; however, the VA examiner noted there were no restrictions in the Veteran's activities. The VA examiner noted the Veteran had an episode of ketoacidosis in March 2005, for which he was hospitalized in intensive care for two weeks, and that he experiences hypoglycemic reactions two to three times a month. There was no other evidence or report of ketoacidosis and the examiner noted that the Veteran's hypoglycemic reactions have not ever required hospitalization. In addition to the foregoing, the May 2007 VA examiner noted that complications of the Veteran's diabetes mellitus included onychomycosis observed on his left foot toenails and diabetic retinopathy, which the Veteran reported was diagnosed on an external examination on March 26, 2007. With respect to the Veteran's onychomycosis, the examiner noted that all toenails of the left foot demonstrate mild onychomycosis at the nail ends, while the toenails of the right foot were clear. There is no other lay or medical evidence that describes the severity of the Veteran's onychomycosis, to include whether the skin disorder resulted in exfoliation, exudation, itching, lesions, or disfigurement and what percent of the entire body or exposed areas are affected thereby. In this regard, the Board notes that such information and evidence would assist the Board in determining whether the Veteran's onychomycosis warrants a separate, compensable rating or, instead, should be considered as part of the diabetes process. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7819 (2001), Diagnostic Codes 7800 to 7833 (2008). Likewise, while the VA examiner noted that diabetic retinopathy was diagnosed in March 2007, the examiner noted that records of such diagnosis were not available for review and the Board's review of the claims file has not does not reveal any evidence of an eye examination conducted in March 2007 which resulted in a diagnosis of diabetic retinopathy. There is no other lay or medical evidence of record that confirms the reported diagnosis of diabetic retinopathy or describes the severity of any diabetic retinopathy. In this context, the Board notes that, in addition to the May 2007 diabetes mellitus examination, the Veteran has been afforded several other examinations, including a VA joints, spine, psychiatric, arteries and veins, esophagus, and hypertension examination. Notably, the May 2007 VA spine examination revealed the Veteran experiences decreased sensation in his right foot that is related to his lumbar spine disability, with no evidence of diabetic neuropathy. The Veteran was not afforded a skin or eye examination and, thus, the evidence of record is inadequate for the Board to determine whether the Veteran's onychomycosis and diabetic retinopathy warrant separate, compensable ratings or are noncompensable and should be considered as part of the diabetes process. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2012). In addition to the foregoing, the Board notes that erectile dysfunction is reflected in the record as early as May 2004 and was also noted on May 2007 VA spine examination. The Veteran has also been diagnosed with hypertension. See treatment records dated from 1994 to 2009; May 2007 VA hypertension examination report. However, there is no medical evidence or opinion of record that addresses whether the Veteran's erectile dysfunction and hypertension are associated complications of the Veteran's service-connected diabetes mellitus; nor does the evidence of record adequately describe the severity of any such complications. See Appellant's Brief dated June 2013. Based on the foregoing, and given that six years have passed since the Veteran was last afforded a VA examination, the Board finds the evidence of record is inadequate for the Board to render a fully informed decision as to the proper disability rating for the Veteran's service-connected diabetes mellitus, type II. Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected diabetes mellitus, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate this disability. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Accordingly, the RO should arrange for the Veteran to undergo VA diabetes examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for a higher initial rating (which emanates from an original claim for, and award of, service connection). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). In this context, the Board notes it is not clear if the evidentiary record contains all pertinent and up-to-date treatment records related to the Veteran's diabetes mellitus. In an undated statement, the Veteran indicated that his current diabetic care provider is Dr. O.K., who appears to be a military doctor in Germany where the Veteran resides. While the evidentiary record contains various treatment records dated from 1995 to 2006, there is no indication that records have been requested from Dr. O.K. in conjunction with this appeal. Therefore, on remand, VA should conduct all reasonable efforts to ensure that treatment records from Dr. O.K. are obtained and associated with the claims file. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim for a higher initial rating for diabetes mellitus should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson v. West, 12 Vet. App. 119, 126 (1999) is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record, including treatment records from Dr. O.K. The RO should specify what evidence VA will provide and what evidence the Veteran is to provide. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period. 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. As needed, all records/responses received should be translated into English and associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records/responses received from each contacted entity are associated with the claims file, or, a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo a VA diabetes examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record). All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should indicate the regimen in place for the Veteran's management of diabetes mellitus, including whether it requires insulin or oral hypoglycemic agents, any dietary restrictions, and any medically required regulation of activities (e.g., avoidance of strenuous occupational and recreational activities). The examiner should also indicate whether the diabetes has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, the frequency of visits to a diabetic care provider, whether there has been any progressive loss of weight and strength, and whether there are separate complications (and the nature and severity of any noted). The physician designated to examine the Veteran must identify all associated complications of the Veteran's diabetes mellitus. The examiner must specifically comment on whether the Veteran's onychomycosis, retinopathy, erectile dysfunction and hypertension are associated, separately ratable complications of his diabetes mellitus, with an explanation and rationale for the determinations provided. The characteristics and severity of diabetes mellitus and all associated complications of diabetes mellitus must be adequately described in the record. If any further examination(s) of the Veteran is/are needed in this regard, the examiner should clearly so indicate. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo any additional examination(s) deemed warranted), the RO should adjudicate the claim for a higher, initial rating for service-connected diabetes mellitus, type II, in light of all pertinent evidence and legal authority, to include consideration of whether staged rating, pursuant to Fenderson (cited above), supra, is appropriate. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).