Citation Nr: 1338407 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-20 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II. 2. Entitlement to service connection for lung nodules (claimed as breathing problems) due to exposure to asbestos. 3. Entitlement to a higher initial evaluation for left knee degenerative joint disease, evaluated as 10 percent from February 19, 2008, 100 percent August 26, 2009, 10 percent from December 1, 2009 and 20 percent from March 23, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1989, June 1994 to September 1994, June 1996 to September 1996, and from January 2003 to June 2004. The Veteran also had periods of active duty while serving in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky in June 2009 and August 2009. The Board notes that the Veteran withdrew his request for a hearing in a June 2010 letter. The issue of incorrect calculation of compensation (in need of an audit) was raised by the record in a May 2010 statement by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 VA examinations The Veteran claims that his current diabetes mellitus diagnosis is related to his military service. Specifically, he claims that he was diagnosed with hyperglycemia in a January 19, 2003 record but was not informed of this diagnosis until years later when he requested his records. The January 19, 2003 examination does not note that it is an enlistment examination but it notes that it was an examination to determine whether the Veteran was qualified for service. His period of active duty began days later on January 26, 2003. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2013). Here, the current medical evidence establishes that the Veteran receives treatment for diabetes mellitus. See June 2009 VA treatment record. The Veteran's service medical records do include the January 2003 pre-deployment physical with the hyperglycemia finding. The question therefore remains whether the evidence indicates that there may be an association. Such an indication will be found when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has provided lay statements to the effect that he believes that the hyperglycemia finding was a precursor to his ultimate diagnosis of diabetes. The Veteran has not been afforded a VA examination as to this issue, and the Board finds that there is insufficient medical evidence to make a decision on the claim. For these reasons, the Board finds that a remand is necessary so that the Veteran can be afforded a VA examination for his claimed diabetes mellitus. Similarly, the Veteran claims that his lung problems are related to his military service. In April 2010, he provided a very detailed account of his exposure to asbestos during service. Specifically he noted duties in (then) West Germany, Fort Knox, and Ashland, Kentucky, which exposed him to asbestos either by living in barracks with asbestos removal actions occurring, and by his duties as a mechanic, a refueler, and a civil engineer. The Veteran also submitted a statement regarding exposure to chemicals, and specifically leaking mustard gas, while stationed at the Blue Grass Army depot in Lexington, Kentucky in 2003. He submitted newspaper articles referencing the highly publicized leaks that occurred there. As to a current diagnosis, a July 2008 VA CT scan noted calcified and non-calcified pulmonary nodules. A February 2008 VA CT scan also showed pulmonary nodules. The service records confirm having been stationed at the places that he referenced. The Veteran claims that he has shortness of breath due these nodules, which he believes are either asbestos or mustard gas related. Thus, the Board finds that a remand is necessary so that the Veteran can be afforded a VA examination for claimed lung condition. SSOC for increased evaluation for left knee The procedural history in this case shows that the issue of a higher evaluation for a left knee disability was properly appealed by the Veteran. He filed a notice of disagreement in September 2009 claiming that higher evaluation should be assigned for his left knee disability. In April 2010, the RO issued a statement of the case that continued the 10 percent evaluation. In May 2010, the Veteran filed a substantive appeal and checked the box for appealing all issues in the statement of the case. In an attachment to the Form 9, the Veteran noted that he believed a 20 percent evaluation was warranted for his left knee disability. He also noted that he was willing not to pursue the higher evaluation if his overall rating was 85 percent. The RO issued a supplemental statement of the case in January 2012 continuing a 10 percent evaluation "at this time". The RO provided the Veteran a new VA examination in March 2012. The RO failed to issue a supplemental statement of the case after the March 2012 VA examination and instead issued a rating decision granting a 20 percent evaluation for his left knee disability beginning March 23, 2012. The Rating Decision also noted that the decision represented a full grant of benefits on appeal. The RO appears to believe that the 20 percent was a full grant of benefits because the Veteran requested a 20 percent evaluation in his May 2010 statement. Even if the Veteran's statements were construed to mean that he would be satisfied with a 20 percent evaluation, the RO decision did not grant a 20 percent evaluation for the entire period on appeal. Therefore, the Board does not find that there has been a full grant of benefits. The Board finds that the case must be remanded so that supplemental statement of the case can be issued which considers all of the recent evidence, including the March 2012 VA examination and VA treatment records. The AMC/RO should clearly explain in the SSOC why a 20 percent evaluation was not warranted prior to March 23, 2012. Private records While the case is in remand status, the Veteran should be asked one more time for the address for Our Lady Bellefonte where he received treatment from 2009 to present for his respiratory complications, diabetes, and knees. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize the release of any medical records not already of record that are pertinent to his claims, including records from Our Lady of Bellefonte. Specifically, ask the Veteran to provide the address for this facility. 2. Obtain all pertinent VA records not already associated with the claims file. 3. After the above development is completed, schedule the Veteran for an examination for his lung disorder, including pulmonary nodules. The examiner should note in the examination report that the claims file has been reviewed. All necessary tests should be completed during the examination of the Veteran. Based on a review of the file, and examination of the Veteran, the examiner is asked to opine as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's currently diagnosed lung disorder, is related to or began during his period of active service. Of specific note, the examiner is asked to comment on the Veteran's credible accounts of exposure to asbestos and mustard gas, tabbed in volume 2 of the claims file. A rationale for any opinion offered is requested. The examiner is reminded that the term "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. 4. After items 1 and 2 above have been completed, schedule the Veteran for an examination for his diabetes mellitus. The examiner should note in the examination report that the claims file has been reviewed. All necessary tests should be completed during the examination of the Veteran. Based on a review of the file, and examination of the Veteran, the examiner is asked to opine as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's currently diagnosed Type II diabetes mellitus, is related to or began during his period of active service. The examiner should specifically comment on the January 2003 notation of hyperglycemia in the service treatment records (volume 1 of the claims file), and whether that represented an early manifestation of diabetes mellitus. A rationale for any opinion offered is requested. The examiner is reminded that the term "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. 5. The Veteran is hereby notified that it is his responsibility to report for any examination, 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. 6. Thereafter, readjudicate the issues on appeal, to include the increased rating for the left knee for the entire period on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant 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 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) (2013).