Citation Nr: 1337786 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-04 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable rating for bilateral diabetic retinopathy associated with the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Samuel M. Tumey, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Jackson, Mississippi (RO), which effectuated the grant of service connection for diabetes mellitus set out in a February 2011 Board decision that initially arose from a December 2006 rating decision. The RO, by way of the March 2011 rating decision, granted service connection for diabetes mellitus with erectile dysfunction and retinopathy. The Veteran's June 2011 notice of disagreement specifically limited his appeal to whether a compensable separate rating is warranted for his retinopathy. Thus, the issue is characterized as such in the case caption, above. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is remanded to the RO. REMAND The Veteran contends that his diabetic retinopathy is of such a severity that a separate compensable rating is warranted. At present, it is rated as a noncompensable complication considered part of the diabetic process under diagnostic code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2013). In particular, the Veteran contends that a 100 percent rating is warranted due to the severity of his loss of visual acuity. In August 2012, the Veteran underwent VA examination of his eyes. The examiner confirmed the Veteran's history of proliferative diabetic retinopathy in both eyes. Visual acuity testing revealed uncorrected and corrected distance and uncorrected and corrected near visual acuity to be the same in both eyes, 5/200. Internal eye examination was noted as abnormal for the left eye due to focal laser scars surrounding the macula. The right eye was noted as normal. Visual field testing was noted as conducted, however, the results were not provided. The examiner concluded by confirming that the Veteran does have retinopathy in both eyes, but opined that loss of visual acuity or other visual impairment was not due to the retinopathy. The examiner also concluded that there was no scarring or disfigurement attributable to any eye condition, despite the earlier notation of scarring around the macula of the left eye. The examiner concluded that the results of this examination cannot be used due to the Veteran's malingering. The examiner explained that the Veteran malingered in two areas, visual acuity and visual field testing. With regard to visual acuity, the examiner noted that the Veteran initially reported 20/400 vision in each eye, but that at the end of the examination he took out a piece of paper to write down the examiner's name, able to write the name in a clear manner without difficulty at a normal working distance using a handwriting size that could not be read by a person with 20/400 visual acuity. Additionally, according to the examiner, the Veteran was seen previously by a private physician where visual acuities were reported to be 20/20 in one eye, and 20/40 in the other, which was noted to be a visual acuity more consistent with the clarity and accuracy of the handwritten note mentioned above. As to visual field testing, the examiner reported that according to the results of the test, the Veteran had a virtually extinguished visual field. "A person such as this would be unable to orient and mobilize themselves without bumping into objects such as chairs, door frames, or tables." The Veteran, however, presented with excellent mobility and was able to walk without difficulty unassisted to the examination room and was seated in the examination chair without assistance. He was also noted to be able to locate and reach for his personal items which were located in his peripheral vision. "Such would not be the case if a person had virtually extinguished visual fields." The August 2012 VA examination report is partially inadequate for several reasons. Initially, the Board understands the examiner's reasoning for finding that the Veteran was malingering when comparing the visual acuity testing results with his actions at the time of examination. However, the examiner also referred to private treatment records, showing a much improved level of visual acuity. The examiner did not identify which records were referenced, but the Board can only assume that they were the private eye treatment records contained within the claims file, which show such visual acuity readings, and which are dated between 1996 and 2007. The VA examiner completely ignored more recent findings in VA treatment records. In April 2012, VA optometry clinic notes show that the Veteran has limited best corrected visual acuity and moderately restricted field, and that he was referred to a low vision clinic. Distance visual acuity in both eyes was noted to be 20/400 and near visual acuity was 20/200. It is noted that the Veteran had, with regard to central visual field, a "small island of vision remaining." Another April 2012 note shows that the Veteran had most recently had treatment with a Dr. Powell one year prior and that he had laser surgery on the left eye one year prior. Earlier VA treatment records found within the Veteran's electronic claims file show that the Veteran reported that he received private treatment in January 2011. In a November 2012 note related to setting the Veteran up for VA's telehealth program, the Veteran was referred to as legally blind but with the ability to see some things and to feel buttons on a machine. Another November 2012 note references an upcoming eye clinic appointment, which the Veteran promised to attend. Thus, while the Board recognizes the potential inconsistency between the Veteran's visual acuity and visual field testing results and his conduct on the date of the examination, the VA examiner failed to discuss relevantly recent treatment records consistent with more the more severe visual acuity and visual field test results. Accordingly, the VA examiner's opinion, or more particularly the finding that the test results were not reliable due to malingering, was partially based on an inaccurate factual premise. Accordingly, this opinion that the test results should not be used must be rejected until further opinion can be obtained with consideration of the complete record. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner also failed to report the actual visual field test results, which were referenced as unreliable. Moreover, the discussion of scarring at one place and then concluding that the Veteran has no scarring of the eye, renders this portion of the report internally inconsistent. For these reasons, the August 2012 VA examiner's report is inadequate for rating purposes as to the aspects discussed, above. Thus, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to afford the Veteran a new VA examination and to obtain an adequate opinion from a VA examiner. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); also see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Prior to this examination, the RO must obtain and associate with the record updated, non-duplicative and relevant VA outpatient treatment records. Again, the April 2011 VA optometry clinic notes reference treatment one year prior. However, prior to April 2011, the most recent VA outpatient notes are dated in March 2010. Thus, there is approximately one year of missing records which seemingly include treatment of the Veteran's eyes. Further, 2012 VA treatment notes found within the electronic file reference upcoming eye appointments. Because it appears that relevant treatment records are missing from the claims file, a remand is required. The record reflects that throughout the course of this claim and appeal, the Veteran has received treatment at the Memphis, Tennessee, VA healthcare system. 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). Under these circumstances, the RO must, with the assistance of the Veteran, obtain all relevant VA clinical records dated since March 2012. On remand, the RO should also again give the Veteran the opportunity to provide information related to any ongoing private treatment of his eyes. A February 2013 Report of Contact shows that the Veteran told a VA representative on the telephone that he has not seen an eye doctor since 1999 or 2000, prior to filing his claim. However, the claims file contains many medical records dated since 2000, and again, VA outpatient records in the electronic claims file reference an upcoming private physician appointment in January 2011. Thus, on remand, the Veteran should be given the opportunity to provide information related to any ongoing private treatment. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include any VA or non-VA evidence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources, to include VA treatment records from the Memphis VA healthcare system dated since March 2010. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine the severity of his bilateral diabetic retinopathy. Appropriate visual field and visual acuity testing, as well as internal examination of the eyes, should be conducted. The results should be reported and an analysis of the findings should clearly indicate a comparison between the Veteran's behavior and the test findings, as well as consider the optometry outpatient findings throughout the period of appeal. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, the RO must readjudicate the Veteran's claim on appeal. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. Accordingly, this claim must be afforded expeditious treatment. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).