Citation Nr: 1333089 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-03 044 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides. 2. Entitlement to an initial, compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Coast Guard from June 1973 to June 1977. See 38 C.F.R. § 3.7(h). He also served as a member of the Coast Guard Reserve and Oregon Army National Guard, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) after June 1977. This appeal to the Board of Veterans' Appeals (Board) arose from August 2004 and May 2010 RO rating decisions. In the August 2004 rating decision, the RO, inter alia, denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, type II diabetes mellitus, claimed as due to exposure to herbicides, left knee disability, right knee disability, and disability of the cervical spine. In November 2004, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In a May 2010 rating decision, the RO denied a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms. In June 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO with regard to the matters for which an appeal had then been perfected. A transcript of that hearing is of record. During the June 2010 Board hearing, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304. Included with the evidence was a statement wherein the Veteran expressed disagreement with the RO's May 2010 denial of a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms. In October 2010, the Board denied service connection for bilateral hearing loss, tinnitus, left knee patellofemoral syndrome, right knee patellofemoral syndrome, and chronic cervical spine strain. The Veteran's claim for service connection for type II diabetes mellitus, claimed as due to exposure to herbicides, was then remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. In addition, as the Veteran had not been furnished a SOC on the issue of a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms, the Board instructed the RO to issue a SOC pertaining to that issue and to afford the Veteran the appropriate opportunity to file a substantive appeal as to that issue. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). In May 2011, the RO issued a SOC on the issue of a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms. The Veteran filed a VA Form 9 in June 2011, thereby perfecting an appeal of that matter. On the VA Form 9, he checked a box indicating his desire for a Board hearing at the RO on that matter. After taking further action, the RO continued to deny the Veteran's claim for service connection for type II diabetes mellitus (as reflected in a January 2012 supplemental SOC (SSOC)). The RO also continued to deny a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms. In March 2012, the RO wrote the Veteran and asked him if he still desired to have a Board hearing, as requested in his June 2011 substantive appeal. In correspondence received later that month, the Veteran cancelled his hearing request. Thereafter, the RO returned the matters on appeal to the Board for further appellate consideration. In a November 2012 decision, the Board noted, with respect to the Veteran's claim for a compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms, that the RO had granted service connection and an initial noncompensable rating for that disability by a rating decision entered in May 2009. The Board observed that the Veteran had not appealed that decision; however, in November 2009, he submitted a report from a private care provider in support of his claim. Inasmuch as the report contained findings relevant to the rating of his disability, and was received within one year of the RO's May 2009 decision, the Board concluded that the appeal of this issue was best viewed as involving disagreement with the initial rating assigned following the grant of service connection. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). As such, the Board characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). With respect to the Veteran's claim for service connection for type II diabetes mellitus, the Board noted that the Veteran had advanced alternate theories in support of his claim. Specifically, he alleged that his type II diabetes exposure was due to herbicides, and also alleged that his diabetes mellitus was incurred in or aggravated by service, to include as due to stress associated with his military duties. The Board denied service connection for type II diabetes mellitus as due to exposure to herbicides. The Veteran's claim for service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides, and the claim for an initial compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms, were then remanded to the RO, via the AMC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claims (as reflected in a May 2013 SSOC) and returned those matters to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. The electronic file contains additional VA treatment records, which the Board has reviewed. For the reasons expressed below, the matters remaining on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claims remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the November 2012 remand was not fully completed. In the November 2012 remand, the Board instructed the RO, inter alia, to specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, any outstanding private medical records, including copies of all clinical records from W. Dale Rowe, O.D., who reportedly examined the Veteran in June 2003, July 2004, February 2008, and February 2009; any additional records of follow-up from Daniel E. Bustos, M.D. (a private care provider who evaluated the Veteran's eyes in March 2010); and any relevant records from Mary Jo Ramsey, M.D. (at PeaceHealth Medical Group), who had reportedly been treating the Veteran for diabetes. Thereafter, the RO was to arrange for the Veteran to undergo VA diabetes mellitus examination, by an appropriate physician, for purposes of obtaining an opinion as to whether it was at least as likely as not (i.e., there was a 50 percent or greater probability) that the Veteran's type II diabetes mellitus was incurred in or aggravated by service. Among other things, the examiner was to comment on the significance of the Veteran's assertions to the effect that his limited ability to exercise due, in part, to service-connected low back pain, caused or aggravated his diabetes. A complete rationale was to be provided for the conclusions offered. A review of the claims file reflects that the agency of original jurisdiction (AOJ) (here, the RO, via the AMC) sent the Veteran a letter in December 2012. However, neither in that letter, nor in any other correspondence of record, did the AOJ specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding records from Drs. Rowe, Bustos, or Ramsey. With respect to the request for a diabetes examination, the evidence reflects that the Veteran underwent such an examination in January 2013, and that the examining physician provided an addendum report in April 2013. However, neither in the report of the January 2013 examination, nor the subsequent addendum, did the physician provide an opinion as to whether it was at least as likely as not that the Veteran's type II diabetes mellitus was incurred in or aggravated by service. Thereafter, in May 2013, the AMC attempted to remedy the defect in development by obtaining an opinion from another source. However, that opinion was provided by a podiatrist, rather than by a physician with specialized knowledge in the areas of endocrinology and/or orthopedics. Moreover, the podiatrist provided little in the way of a substantive rationale with respect to the Veteran's assertions to the effect that his limited ability to exercise due, in part, to service-connected low back pain, caused or aggravated his diabetes. The podiatrist, in effect, noted only that there was no medical or scientific basis for the Veteran's theory, without any discussion of the medical principles that would render such an association impossible or unlikely. Accordingly, the RO should again arrange for the Veteran to undergo VA diabetes mellitus examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of his claim for service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides (inasmuch as the claim will be adjudicated based on the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Records of the Veteran's treatment through the VA Medical Center (VAMC) in Roseburg, Oregon were last associated with the Veteran's electronic claims file on May 15, 2013. Hence, more recent medical records from this facility may exist. The Board emphasizes that 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. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since May 15, 2013. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). As indicated in the Board's November 2012 remand, the RO should specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, any outstanding medical records from Drs. Rowe, Bustos, and Ramsey (PeaceHealth Medical Group). Although it is the RO's responsibility to send the letter, the Veteran is hereby notified that the records from these care providers could contain information bearing on the outcome of his appeal, and that his cooperation is required if the evidence is to be procured. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. As indicated, the RO's adjudication of the claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. In addition, because the application underlying the Veteran's claim for compensation for an initial compensable rating for chemical injury residuals, bilateral eyes, diagnosed as photophobia with dry eye symptoms, was filed in January 2004, the rating criteria in effect prior to December 10, 2008 should be applied. See 73 Fed. Reg. 66,543, 66,544 (Nov. 10, 2008) (indicating that the current criteria apply only apply to claims filed on or after December 10, 2008). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Roseburg VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran since May 15, 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. The RO should specifically request that the appellant provide, or provide appropriate authorization for it to obtain, any outstanding private medical records, including copies of all clinical records from W. Dale Rowe, O.D., who reportedly examined the Veteran in June 2003, July 2004, February 2008, and February 2009; any additional records of follow-up from Daniel E. Bustos, M.D.; and any relevant records from Mary Jo Ramsey, M.D. (PeaceHealth Medical Group), who has reportedly been treating the Veteran for diabetes. Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include copies of all clinical records from W. Dale Rowe, O.D., who reportedly examined the Veteran in June 2003, July 2004, February 2008, and February 2009, any additional records of follow-up from Daniel E. Bustos, M.D., and any relevant records from Mary Jo Ramsey, M.D. (PeaceHealth Medical Group), who has reportedly been treating the Veteran for diabetes-following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA diabetes mellitus examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of relevant records in the Virtual VA folder, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's type II diabetes mellitus was incurred in or aggravated by service. In so doing, the physician should comment on the significance, if any, of the Veteran's assertion that his diabetes was caused or aggravated by service-related stress, or by the diet he was served during reserve drills. The examiner should also comment on the significance of the Veteran's assertions to the effect that his limited ability to exercise due, in part, to service-connected low back pain, caused or aggravated his diabetes. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the matters remaining on appeal in light of all pertinent evidence and legal authority, including the rating criteria in effect prior to December 10, 2008, pertaining to diseases of the eye. 8. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).