Citation Nr: 1335990 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-12 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected sarcoidosis, with a history of subjective complaints of fibromyalgia and polyneuropathy. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to service-connected sarcoidosis, with a history of subjective complaints of fibromyalgia and polyneuropathy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to August 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claims. In his April 2008 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge at the VA Central Office in Washington, DC. In May 2013, a hearing was scheduled, but the Veteran failed to report. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). In June 2013, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an October 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. This appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As noted above, the Board remanded these claims for a VA examination in order to determine the current severity of the Veteran's service-connected sarcoidosis and whether his diagnosed diabetes mellitus is caused or aggravated by his sarcoidosis. The AMC notified the Veteran via a letter dated June 2013 that an examination would be scheduled and of the consequences for failure to report, including the denial of his claims. After an examination was scheduled, the Veteran failed to report for the examination. However, in the Informal Hearing Presentation (IHP) dated October 2013, the Veteran's representative reported that the Veteran was unable to attend his scheduled VA examination because he was hospitalized for other medical conditions and was also homeless at the time. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, the following actions shall be taken, as appropriate. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). With the foregoing in mind, the Veteran's sarcoidosis claim falls within the parameters of a claim for increase and a failure to report for an examination "shall be denied" unless good cause for the Veteran's failure to report is demonstrated. Additionally, his diabetes mellitus claim falls within the parameters of an original compensation claim and failure to report for an examination "shall be rated based on the evidence of record." Exceptions to these regulations involve whether good cause for the Veteran's failure to report is demonstrated. Pertinently, examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). In this case, the Veteran has demonstrated good cause for his failure to report for his scheduled VA examination, specifically that he had been hospitalized and homeless during that time. Consequently, as such good cause has been shown, the Veteran should be scheduled for an appropriate VA examination to determine the current severity of his service-connected sarcoidosis and whether it is at least as likely as not that his diabetes mellitus is caused or aggravated by his sarcoidosis. On remand, the RO should also ensure that the Veteran is informed of the consequences of any failure to report for rescheduled examination without good cause. Accordingly, the case is REMANDED for the following action: 1. Please verify the Veteran's current mailing address. 2. Then, take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claims. The Veteran must then be given an opportunity to respond. 3. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the current level of severity of his service-connected sarcoidosis as well as the etiology of his diabetes mellitus, type II. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination. The examiner is asked to perform all necessary tests and studies, and describe in detail all symptomatology associated with the Veteran's sarcoidosis. This should include a discussion of the following: a. Whether there is pulmonary involvement and whether this requires systemic high dose corticosteroids for control. b. Whether there is cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. Additionally, based on review of the Veteran's medical history and examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus is caused or aggravated by his sarcoidosis. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. "Aggravation" means that a disability was permanently worsened beyond its natural progression. If the examiner finds that the Veteran's diabetes is aggravated by his sarcoidosis, then he/she should quantify the degree of aggravation to the extent possible. A complete explanation must be provided for all opinions offered, and the examiner must fully consider and discuss the Veteran's lay statements when offering an opinion. 4. The letter informing the Veteran of the examination should expressly inform him that failure to appear to the examination for his increased rating claim for sarcoidosis as requested, and without good cause, will result in denial of his claim, and for failure to appear to the examination for his service connection claim for diabetes mellitus as requested, and without good cause, his claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (2013). 5. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).