Citation Nr: 1328531 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 04-36 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Evaluation of diabetes mellitus, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to May 1989. This matter initially came before the Board of Veterans' Appeals (Board) from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted entitlement to service connection for diabetes mellitus and assigned a 20 percent rating. The Veteran appealed the assigned rating. In July 2006, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2008, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision, vacating and remanding the Board's July 2006 decision. In April 2009, the Board remanded the claim, pursuant to the Court's memorandum decision. In March 2011, the Board again denied the claim. The Veteran appealed that decision to the Court. In February 2013, the Court issued a memorandum decision, vacating and remanding the Board's March 2011 decision. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. 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 In the March 2013 memorandum decision, the Court determined that in its March 2011 decision, the Board failed to ensure substantial compliance with April 2009 remand instructions. Stegall v. West, 11 Vet. App. 271 (1998). In April 2009, the Board remanded the appeal in order to afford the Veteran a VA medical examination. The examiner was to opine on whether the Veteran's diabetes requires insulin, a restricted diet, and the regulation of activities. With regard to the regulation of activities, the examiner was to opine on whether it is medically necessary for the Veteran to avoid strenuous occupational and recreational activities. In August 2009, a VA examination was conducted. The August 2009 examiner concluded that diabetes did not "keep [the Veteran] from working or keep him from daily activities or occupational activities," nor "interfere with [the Veteran's] daily activity or his ability to function in a regular job." However, the examiner also noted that the Veteran could not walk more than a quarter of a mile due to bilateral neuropathy, a condition which the examiner determined was "as likely as not" related to his diabetes. The examiner further reported that the Veteran's neuropathy prevents him from exercising his lower body. In its March 2013 memorandum decision, the Court found that at best, the examiner's conclusion was confusing; on one hand the examiner found that the Veteran was not restricted by his diabetes, but on the other hand notes that his diabetic-related neuropathy limited his walking and the exercise of his lower body. Additionally however, the Court noted that medical examiner failed to offer an opinion on whether the Veteran's avoidance of certain physical activities based upon diabetic-related neuropathy was medically necessary. As such, the Court found that an August 2009 VA examination report did not adequately address whether the Veteran's diabetes causes a "regulation of activities," as directed by the Board in the April 2009 remand. The Court noted that in this case, the question of the "regulation of activities" is pivotal in establishing whether a higher, 40% disability rating is warranted. 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (assigning a 40% disability rating for diabetes when the condition requires "insulin, a restricted diet, and regulation of activities"). Under this code provision, the "regulation of activities" means "avoiding strenuous occupational and recreational activities." Id.; Camacho v. Nicholson, 21 Vet.App. 360, 363 (2007) (recognizing the definition of "regulation of activities" means "avoidance of strenuous occupational and recreational activities" as defined under the 100% rating criteria for DC 7913). In addition, the August 2009 VA examiner noted that the Veteran had failed his last eye examination for his driver's license because of vision problems, even with glasses. The examiner noted a March 2008 VA record showing negative retinopathy. In his brief to the Court, the Veteran argued that that the examination report was inadequate because it did not include an examination of his eyes. He essentially argued that his limited eyesight may be a diabetic complication, and if so, the inability to drive would constitute a regulation of activities. The Court noted that the VA Clinician's Guide lists visual impairment as a potential complication of diabetes mellitus and the worksheet recommends an eye examination when positive eye signs or symptoms occur. As such, the Board finds that a remand is necessary to afford the Veteran a VA examination to address all complications of his diabetes, including eye complications, and to clarify whether the Veteran's diabetes mellitus requires a medically necessary regulation of activities. Further, in an August 2013 statement, the Veteran's representative requested that the Veteran's Dallas VAMC treatment records from August 2012 to August 2013 be considered in readjudicating the claim. These records are not contained in the claims file or Virtual VA system. The most recent VA treatment notes of record appear to be dated from 2004. Updated records should be associated with the file prior to appellate adjudication. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records pertaining to the Veteran, including from the Dallas VAMC, dated since 2004. If no records can be obtained, VA's efforts must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)- (iv) (2012) must be achieved. 2. Thereafter, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected diabetes mellitus. The examiner must be provided with the claims file. The examiner is requested to review all records and to comment on the severity of the Veteran's service-connected diabetes mellitus. The examiner should identify and describe all complications of the Veteran's diabetes. In particular, the examiner should determine whether the Veteran has any eye complications, and whether the peripheral neuropathy of the bilateral lower extremities is a complication of the diabetes. Then, in consideration of all signs and symptoms of the diabetes and all related complications, the examiner must provide an opinion as to the following: a. Does the Veteran's diabetes mellitus require insulin, restricted diet, and regulation of activities? b. With regard to regulation of activities, is it medically necessary for the Veteran to avoid strenuous occupational and recreational activities? In this regard, the examiner should address whether walking and exercise restrictions due to peripheral neuropathy, documented in the August 2009 VA examination report, are medically necessary. The examiner should also address the Veteran's contention that his inability to pass the eye examination required for a driver's license is a diabetes-related regulation of activity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the completion of any action deemed appropriate, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ H. N. SCHWARTZ 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).