Citation Nr: 1332585 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-14 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for essential hypertension, claimed as being due to diabetes mellitus, type II. 2. Entitlement to service connection for previous proteinuria due to membrane glomerular nephropathy, claimed as being due to diabetes mellitus, type II. 3. Entitlement to service connection for recurrent subcutaneous hemorrhages. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from March 1965 through October 1968, to include service in Vietnam from October 1967 through May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Original jurisdiction over this matter was subsequently transferred to the RO in North Little Rock, Arkansas. Timely Notices of Disagreement (NODs) with respect to the issues denied in the June 2009 rating decision were received in February and March of 2010. After a Statement of the Case addressing these issues was provided in March 2010, the Veteran perfected his appeal in May 2010, via VA Form 9 substantive appeal. Additional evidence, consisting of additional private treatment records from Dr. S.W., dated September and October of 2012, was received from the Veteran in November 2012. In a September 2013 brief filed on the Veteran's behalf by his representative, the Veteran waived agency of original jurisdiction review of this evidence, pursuant to 38 C.F.R. § 20.1304. This evidence has been associated with the record. 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 his June 2009 claim, the Veteran alleged generally that he is entitled to service connection for proteinuria, hypertension, and recurrent subcutaneous hemorrhaging. In support of his claim, he argued categorically that each of these disabilities is related to his service-connected diabetes mellitus, type II. During a VA examination performed in July 2009, the VA examiner confirmed diagnoses of essential hypertension, but opined that the Veteran's hypertension was less likely as not related to his diabetes mellitus, type II. As rationale, the examiner concluded that, according to review of the record and based upon the Veteran's reported history, the Veteran's hypertension actually predated his initial diabetes diagnosis in 2008. Regarding proteinuria, which the examiner noted that the Veteran had onset of nephrotic syndrome in November 2005, which was manifested by heavy proteinuria. The examiner also noted that a January 2006 kidney biopsy revealed membranous nephropathy that responded well to treatment and resulted in resolution of the Veteran's proteinuria and improved renal function. Indeed, the examination did not reveal any evidence of current proteinuria. Regarding the Veteran's membranous nephropathy, the examiner opined that that disorder was idiopathic and not related to the Veteran's service-connected diabetes mellitus, type II. The examiner did not provide further discussion or explanation as to why he believed that the Veteran's nephropathy was idiopathic in nature, or what relationship, if any, exists between the Veteran's proteinuria and membranous nephropathy. Concerning the Veteran's subcutaneous hemorrhaging, the examiner noted that the Veteran reported that he had been bruising easily over the preceding six months. According to the examiner, the Veteran also reported that he was taking aspirin during that six month period. Also according to the examiner, an examination of the Veteran did not reveal the presence of any bruising. Apparently based upon the reported history, the examiner concluded that the Veteran's subcutaneous hemorrhaging was likely related to aspirin intake. In arguments raised in his May 2010 substantive appeal, the Veteran disputed the findings and conclusions expressed in the VA examiner's July 2009 report. Regarding his hypertension, he challenged the VA examiner's rationale that the Veteran's hypertension (diagnosed in 2004) predated his diabetes mellitus by four years by pointing out that VA lab reports show that his sugar levels were out of balance since September 2005. Indeed, VA laboratory data contained in the claims file does indicate that the Veteran had elevated glucose levels in his blood as early as that date. In relation to his proteinuria, he alleged that his proteinuria had returned, as shown in recent laboratory results. He argued further that his private physician, Dr. S.W. opined that his proteinuria is caused by his diabetes mellitus, type II. Consistent with the Veteran's assertions, private laboratory testing from September 2012 does show elevated protein levels in the Veteran's urine. Regarding his recurrent subcutaneous hemorrhaging, the recalled that although he offered to show bruising on his arms to the examiner, the examiner declined to look at the bruising because he knew that they were being caused by aspirin. The Veteran asserted that he did not begin taking aspirin until January 2009, after he began experiencing his reported bruising. Also, in further support of his theory that his subcutaneous hemorrhaging was caused by his diabetes mellitus, type II, he also noted that he was diagnosed with diabetes mellitus in December 2008, before he began taking aspirin. Indeed, in the aforementioned September 2013 brief, the Veteran's representative argued that a remand of is matter is necessary for review of the claims file and an expert opinion as to the nature and etiology of the Veteran's claimed disabilities. In view of the specific arguments raised by the Veteran in his substantive appeal and the nature of the claimed disabilities (i.e., unconfirmed bruising on his arms and unconfirmed current proteinuria), the Board finds that a live examination of the Veteran, performed in conjunction with a review of the claims file, is more likely at this juncture to provide the Board with the informed opinion necessary in this case. Accordingly, the Veteran should be arranged to undergo a new VA examination, performed by an endocrinologist, to assess the nature and etiology of his claimed hypertension, proteinuria, and recurrent subcutaneous hemorrhaging, to include whether these disabilities have been caused by or resulted from his service-connected diabetes mellitus, type II. Prior to requesting the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify any private or VA treatment providers who have rendered treatment for his hypertension, proteinuria, and/or recurrent subcutaneous hemorrhaging since October 2012. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for essential hypertension, proteinuria due to membrane glomerular nephropathy, and recurrent subcutaneous hemorrhages, each claimed as being due to diabetes mellitus, type II. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to schedule a new VA examination of his claimed disabilities. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examination and to cooperate with the development of his claim; failure to report to any scheduled examination without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his hypertension, proteinuria, and recurrent subcutaneous hemorrhaging since October 2012. 2. Make efforts to obtain the records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, 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 the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination with an endocrinologist, to determine the nature and etiology of all disabilities in relation to his claimed hypertension, proteinuria, and recurrent subcutaneous hemorrhaging. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies should be performed in a manner that is in accordance with the applicable regulations. The examiner should provide diagnoses pertinent to the Veteran's claimed hypertension, proteinuria, and recurrent subcutaneous hemorrhaging, and, an opinion as to whether it is at least as likely as not (i.e., is at least a 50 percent probability) that any diagnosed disorder was sustained during his active duty service, or, resulted from an injury or illness sustained during service. The examiner should also provide an opinion as to whether it is at least as likely as not that any diagnosed disorder was caused by or resulted from his service-connected diabetes mellitus, type II. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes consideration of and citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of the Veteran's entitlement to service connection for essential hypertension, proteinuria due to membrane glomerular nephropathy, and recurrent subcutaneous hemorrhages, each claimed as being due to diabetes mellitus, type II, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an 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). _________________________________________________ MICHAEL LANE 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) (2013).