Citation Nr: 1331702 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-40 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to hypertension, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II. 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left foot. 4. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis, to include pes planus and heel spurs. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2011, the Veteran and his wife testified before the undersigned during a video conference Board hearing. A transcript of the hearing is associated with the claims file. Subsequent to the hearing, the Veteran submitted additional evidence. However, this material was not accompanied by a waiver of initial RO consideration of the submitted evidence. It appears that most of this material has not been reviewed by the Agency of Original Jurisdiction. Therefore, and for the additional reasons outlined below, the Board will remand this additional evidence in accordance with the instructions below. See 38 C.F.R. § 20.1304(c) (2012). 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 on his part. REMAND Unfortunately, a remand is required with respect to the Veteran's claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Concerning the Veteran's claims for service connection for diabetes and for hypertension, the Board notes the Veteran's assertions of exposure to herbicides while stationed on Okinawa during the time period of the Vietnam War. A veteran who, during active military, naval, or air service, served in Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including diabetes mellitus and hypertension, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for the Federal Circuit has also held that when a claimed disorder cannot be granted as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While current VA regulations limit the possibility of presumptive service connection based on exposure to herbicides to service in Vietnam or Korea at certain periods of time, and even though the Veteran is not entitled to presumptive service connection for either diabetes or for hypertension due to herbicide exposure based on any presence on land in Vietnam or Korea at those times, he may still pursue direct service connection for each claim. In written submissions and his Board testimony, the Veteran stated that he was a supply warehouseman for the Marine Corps while stationed at Camp Futema; that he often had to transit the camp perimeter while working in supply and the camp perimeter may have been treated with Agent Orange; that he received Vietnam infantry training in the north of the island in a training area reportedly also treated with herbicides; and that he often handled material being returned from Vietnam that may have been sprayed with Agent Orange. See, i.e., hearing transcript at pp. 7, 15-16; Statements in Support of Claim dated January 2010 and December 2009. The Board also notes that the written material the Veteran recently submitted (which the RO has yet to consider), which includes news articles about the possible exposure of servicemen to Agent Orange in Okinawa and copies of past Board decisions granting service connection based on exposure to herbicides on Okinawa, appears to corroborate his lay evidence that some veterans stationed on Okinawa during the time of the Vietnam war were exposed to herbicides. The service department reported in January 2010, however, that the Veteran had no exposure to herbicides while in service. The Board notes that the Veteran has never been provided with a VA examination for either his diabetes or hypertension claims. VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records indicate the Veteran did not have high blood sugar or high blood pressure while on active duty, but as noted above there has been lay and documentary evidence introduced that the Veteran served on Okinawa at a time when herbicides were sprayed. Post-service medical records show treatment for glucose intolerance in May 2004 and a confirmed diagnosis of diabetes mellitus, type II, in May 2007. The earliest notation of hypertension in the claims file is found in a November 2001 VA medical record and a March 2002 VA medical record also shows a diagnosis of hypertension. Thus, there is competent evidence of current diabetes and hypertension disorders and indications in the evidence that such disorders could be associated with his service on Okinawa. The Board finds there is insufficient medical evidence at present to decide these two claims. Therefore, on remand an appropriate VA examination and medical opinion as to both diabetes mellitus, type II, and hypertension should be obtained. Concerning the Veteran's claim for higher ratings for his service-connected right foot and left foot disorders, the Board notes that during the recent Board hearing the Veteran's representative argued that the last VA foot examination was inadequate because the examiner appeared to have little knowledge of the Veteran's conditions and only did a visual inspection rather than manipulation of the feet as required by Diagnostic Code 5276. The Veteran's wife also noted that the Veteran was seen by the same VA fee-basis examiner on two occasions and that she and her husband wanted a second opinion. In addition, the Veteran testified that the last time he went to the VA facility in Muskogee before his Board hearing, the doctor told him that basically nothing was wrong with his feet. See Board hearing transcript at pp. 26-28. The Board notes that the Veteran was service connected for a left foot disorder in a September 2005 rating decision and was service connected for his right foot disorder in an April 2009 rating decision. It is apparent that the same physician conducted both the January 2009 VA fee-basis examination of the right foot and the January 2010 VA fee-basis examination of both feet. While a VA examination is not inadequate merely because the same examiner conducted an examination of the Veteran on more than one occasion, the Board notes that the Veteran's right foot disorder has been evaluated in the past as analogous to Diagnostic Code 5276 (for rating flatfeet). However, the Board's review of the reports of both the January 2009 and the January 2010 VA fee-basis examinations show each lacks optimal information with which to evaluate a foot disorder under Diagnostic Code 5276, such as pain on manipulation or any indication of swelling on use. For example, these two examination reports disagree on whether the Veteran's right foot swells when standing or walking. In addition, the Board also notes that the Veteran's most recent VA feet examinations were in January 2009, now nearly five years old, and January 2010, now nearly four years ago. It is appropriate that his most recent symptoms be evaluated. VA will obtain a new medical examination where, as here, the last medical examination may be too remote in time to portray the current nature, extent, and severity of the disability on appeal. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). On remand, therefore, a new VA examination should be obtained to determine the current severity of the Veteran's service-connected right foot and left foot disorders. Before any VA examination is scheduled, however, the RO/AMC should ask the Veteran and his representative for releases to associate relevant private treatment records with his claims file. In addition, any relevant VA treatment records also should be associated with the claims file or with his Virtual VA eFolder. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand all relevant VA medical records dated since November 2010 should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for his disorders on appeal. After the Veteran has signed any necessary releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. VA treatment records since November 2010 should be requested whether or not the Veteran responds to the request for additional information. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. After completion of the development referred to above, the RO/AMC shall schedule the Veteran for appropriate VA examination to determine the nature and etiology of any current diabetes mellitus, type II, and hypertension disorders. The claims file shall be made available to and reviewed by the examiner(s). The examiner(s) shall note such review, and identify important information gleaned therefrom, in an examination report. Based on examination of the Veteran and a thorough review of the record, the examiner(s) should provide an opinion as to the following: a) Whether it is at least as likely as not (50 percent probability or higher) that any currently diagnosed diabetes mellitus, type II, and hypertension disorders had their onsets in service or within the first post-service year, or are causally related to service. b) If hypertension is not deemed related to service but diabetes mellitus, type II, is, then opine whether it is at least as likely as not that any currently diagnosed hypertension disorder was caused by diabetes mellitus, type II; or in the alternative whether it is at least as likely as not that the Veteran's diabetes mellitus, type II, disorder aggravated (i.e., permanently worsened) any currently diagnosed hypertension disorder found on examination. If aggravation is found, the degree of aggravation must be specifically identified. A rationale or explanation is requested for all medical opinions. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. After completion of the development referred to in paragraph 1, the RO/AMC also shall schedule the Veteran to undergo an appropriate VA examination to determine the severity of his right foot and left foot disabilities. If possible, the Veteran should be examined by a clinician who has not previously examined him. The claims file shall be made available to and reviewed by the examiner. The examiner shall note such review, and identify important information gleaned therefrom, in an examination report. All indicated studies deemed necessary to evaluate all disabilities of each foot shall be performed, and all findings regarding all disabilities of both feet, such as pes planus, plantar fasciitis, and degenerative arthritis, shall be reported in detail. The rationale for any opinions expressed shall be provided in the examination report. A rationale or explanation is requested for all medical opinions. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should thereafter be returned to the Board for the purpose of appellate disposition. 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). These claims 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). _________________________________________________ BARBARA B. COPELAND 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).