Citation Nr: 1326501 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-22 896A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a restoration of a 60 percent rating for service-connected type I diabetes mellitus. 2. Entitlement to service connection for a back condition, claimed as secondary to service-connected diabetes. 3. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from January 1984 to May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of January 2007 of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO) that reduced the Veteran's rating for diabetes, denied his claim for service connection for a back condition, granted service connection for depression at 50 percent, and denied his claim for a TDIU. This case was previously before the Board in June 2012, at which time the case was remanded for further development. The issue of entitlement to service connection for a generalized systemic condition manifested by bone loss, claimed as secondary to diabetes has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 For various reasons, the Veteran's claim must be remanded. First, updated VA treatment records must be obtained; the most recent VA treatment records are dated January 2008. Importantly, the Veteran's June 2012 VA mental disorders examination specifically referenced treatment that the Veteran had at the West Palm Beach VA hospital in 2010. Records of the Veteran's VA treatment must be obtained before the Board can issue a decision. Second, in his August 2008 substantive appeal, the Veteran stated that he was hospitalized for his diabetes at the University Hospital in Tamarac, Florida. Though the Veteran has provided releases to obtain his records from other facilities, he did not provide a release for this hospital. The Veteran must be informed that he can provide a release for VA to obtain this information on his behalf, or that he can submit this information on his own. Third, the Veteran underwent a VA examination in June 2012 to resolve the question of whether his claimed back condition is related to his service-connected diabetes. The opinion obtained is inadequate, and a new opinion must be obtained on remand. Finally, with respect to the Veteran's claim for a TDIU, though the Veteran underwent a VA examination for each of his service-connected disabilities, no examiner considered the effect that the Veteran's disabilities collectively have on his occupational outlook. A new examination and opinion must be obtained. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice informing him that he may submit information from the University Hospital in Tamarac, Florida, or that he may provide a release for VA to obtain this information on his behalf. 2. Obtain the Veteran's VA treatment records dated from January 2008 and thereafter and associate them with his claim file. 3. Schedule the Veteran for a VA spine examination by an appropriate medical professional, but not the examiner who performed the June 2012 examination. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner is to state whether it is at least as likely as not (a 50 percent or greater probability) that any identified back condition is caused by or aggravated by his service-connected diabetes or any of its related conditions, including peripheral neuropathy of the bilateral lower extremities. If the examiner finds that the Veteran's back disorder is aggravated by his service-connected diabetes and its attendant complications, then to the extent possible, the examiner is to provide an opinion as to the approximate baseline level of severity of the back disorder before the onset of aggravation. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination for his TDIU claim by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner must identify each impairment or symptom found as a result of the service-connected disabilities (including depression, diabetes, and peripheral neuropathy of the bilateral lower and upper extremities) and state the occupational impact that each impairment or symptom has on the Veteran's ability to secure or follow substantially gainful employment. The examiner must state the functions which would be difficult or impossible to do as a result of the associated service-connected symptom or impairment. Further, the examiner must state the impact that the Veteran's service-connected impairments and symptoms both individually and as a whole have on his ability to accomplish sedentary and manual employment. In offering this opinion, the examiner must also take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 5. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. 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). _________________________________________________ RONALD W. SCHOLZ 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).