Citation Nr: 1332445 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-37 725 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from December 1967 to September 1969. This appeal comes before the Board of Veterans' Appeals (Board) from April and September 2004 rating decisions of the RO in Phoenix, Arizona. In June 2007, the Veteran presented testimony at a Board hearing, chaired by a Veterans Law Judge who has since retired from the Board. A transcript of the hearing is associated with the claims file. In a decision dated in February 2008, the Board denied each of these claims, as well as a claim for an earlier effective date for the grant of service connection for diabetes mellitus and claims of entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Veteran appealed the February 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an September 2010 Memorandum Decision, the Court vacated the Board's February 2008 decision in part, and remanded the two issues listed on the title page above to the Board for additional development. The Court also vacated and remanded the issues of entitlement to service connection for right and left lower extremity peripheral neuropathy to the Board. The Board's denial of an earlier effective date for the grant of service connection for diabetes mellitus was affirmed by the Veterans Court. In June 2011, the Veteran was notified that he could request another hearing before the Veterans Law Judge who would decide his claim. He requested another hearing and the Board remanded the appeal in March 2012 to fulfill his request; however, in July 2013 correspondence, the Veteran withdrew the request for a Board hearing. In an August 2013 rating decision, the RO granted service connection for right and left lower extremity peripheral neuropathy, which constitutes a complete grant of the benefits sought with respect to those issues. The appeal as to those issues is therefore resolved. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system. 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 The appeal must be remanded to address the certain deficiencies in the evidentiary record identified by the Court in its September 2010 Memorandum Decision. As noted in the Introduction, the grant of service connection for bilateral lower extremity peripheral neuropathy has resolved the appeal as to those issues and no further action is necessary to correct deficiencies identified by the Court as to those issues. The Board's March 2012 remand was specifically directed towards affording the Veteran a hearing. None of the matters raised by the Court were addressed at that time. While a review of the August 2013 rating decision reveals that the Veteran was provided a VA general medical examination dated July 31, 2013, a VA hypertension examination dated July 31, 2013, and a VA diabetes mellitus examination dated July 31, 2013, these documents are not contained in the physical claims file, are not loaded to the Virtual VA system, and are not loaded to the Veterans Benefits Management System (VBMS). While it is unclear whether these reports will be satisfactory to rectify the deficiencies noted by the Veterans Court, these documents are clearly pertinent to the issues remaining on appeal and must be obtained and associated either with the physical claims file or the Virtual claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Regarding the specific deficiencies identified in the denial of an increased rating for diabetes mellitus, the Court not only faulted the Board's analysis and discussion of the evidence, but noted that the representative of the VA Secretary had conceded that the VA examination (April 2004) upon which the initial rating for diabetes mellitus was based was inadequate because the examiner did not discuss the necessity for regulation of activities. Subsequent VA outpatient treatment records discuss the Veteran's requirement of insulin; however, there are no findings that directly address the necessity for regulation of activities. While the RO apparently obtained an updated VA examination in July 2013 (not of record), the RO's discussion of the examination in the August 2013 rating decision does not address findings regarding regulation of activities. The Board finds that the evidentiary record before it is inadequate to address the concerns of the Veterans Court and to evaluate the Veteran's service-connected diabetes mellitus. VA's duty to assist the veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). Regarding the claim of entitlement to service connection for hypertension, the Court noted that the Veteran had reported and testified that his hypertension had been linked to his diabetes mellitus by his doctor, and that the Board had not adequately addressed this lay evidence. Although the Veteran was apparently afforded a VA hypertension examination in July 2013 (not of record), the RO did not adjudicate entitlement to service connection for hypertension in the subsequent August 2013 rating decision. Indeed, the rating code sheet indicates that hypertension remains a nonservice-connected disability. It is currently unclear whether there is sufficient evidence to address the claim of service connection for hypertension. Given the aforementioned evidence, the Board finds that a VA nexus opinion is required to determine whether hypertension should be service connected, provided the July 2013 VA examination is inadequate. Accordingly, the appeal is REMANDED for the following action: 1. Ensure that the examination reports noted in the August 2013 rating decision (i.e. July 2013 VA compensation examinations) are made available to the Board for review. The Board emphasizes that it does not have direct access to the CAPRI system or any electronic compilation of medical records other than Virtual VA and VBMS. Medical records must be either printed and associated with the claims file, or loaded to an accessible electronic depository such as Virtual VA or VBMS. 2. If the July 2013 VA examination report does not contain sufficient findings to apply the rating criteria pertaining to diabetes mellitus, to include findings regarding the necessity for regulation of activities consistent with the definition of regulation of activities, i.e., avoidance of strenuous occupational and recreational activities, obtain another VA medical evaluation and opinion which addresses the current severity of diabetes mellitus. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 3. If the July 2013 VA hypertension examination does not contain an opinion addressing the etiology of hypertension, obtain a new VA medical evaluation and opinion. The VA clinician should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that hypertension is caused or aggravated by diabetes mellitus. If the examiner concludes that the Veteran's service-connected diabetes mellitus aggravated hypertension, the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation by diabetes mellitus and the level of severity existing after the aggravation occurred. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 4. Readjudicate the remanded claims. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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 appeal 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). _________________________________________________ K. Parakkal 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 this appeal. 38 C.F.R. § 20.1100(b) (2013).