Citation Nr: 1636316 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 10-17 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy, impotence, bilateral cataracts, and onychomycosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the appeal resides with the RO in Atlanta, Georgia. In May 2013, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2014, the Board remanded the current issue for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the Veteran's claim. The Board's January 2014 remand requested that the Veteran be afforded an appropriate VA examination to assess the current severity of his diabetes mellitus. In connection with that request, the Board also asked the examiner to address all complications of the Veteran's diabetes, along with their symptoms. In February 2014, a VA clinician examined the Veteran and completed diabetes mellitus and male reproductive system conditions disability benefits questionnaires (DBQs). On the male reproductive system DBQ, she noted that the Veteran had a voiding dysfunction. However, in response to the question regarding that condition's etiology, the examiner stated only that the dysfunction consisted of occasional slowing of urine and urinary frequency rather than discussing whether it was related to diabetes. The examiner also checked a box indicating that the Veteran had eye conditions other than diabetic retinopathy that were related to his diabetes mellitus. However, she later noted that an ophthalmology examination was pending. The VA physician who conducted a separate VA eye conditions examination in March 2014 diagnosed the Veteran with nuclear senile cataracts and primary open angle glaucoma in both eyes. He also noted that the Veteran had a long-standing history of insulin dependent Type II diabetes mellitus, which was poorly controlled, but that there was no evidence of diabetic retinopathy in either eye. The physician found that the Veteran's other eye conditions were not related to diabetes. However, in support of that determination, he offered only the conclusory statements that the Veteran's cataracts were more likely than not related to aging and that his glaucoma was less likely than not related to diabetes mellitus. Notably, a September 2007 VA QTC examiner had opined, in a similarly conclusory manner, that the Veteran's cataracts were as likely as not related to his diabetes. The Board further notes that the Veteran's VA treatment records include diagnoses of retinopathy, including an October 2011 diagnosis of mild nonproliferative diabetic retinopathy in both eyes, which were not addressed by the 2014 VA examiners. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this instance, given the incomplete and conclusory findings contained in the February and March 2014 VA examinations, those examinations are inadequate, and another remand is required to substantially comply with the Board's January 2014 directives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Stegall v. West, 11 Vet. App. 268 (1998) (holding that the Board errs as a matter of law when it fails to ensure remand compliance). Updated VA treatment records should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Associate any outstanding VA treatment records with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Schedule the Veteran for a VA examination or examinations to determine the nature and severity of his service-connected diabetes mellitus with diabetic retinopathy, impotence, bilateral cataracts, and onychomycosis. All indicated tests and studies should be performed and all findings should be reported in detail. The claims file must be made available to the examiner(s) for review. The examiner(s) should report all signs and symptoms necessary for rating the Veteran's diabetes mellitus and any identified complications under the applicable rating criteria. Following review of the claims file, completion of the examination(s) of the Veteran, and completion of all applicable DBQs, the examiner(s) should respond to the following: (a) Please specifically discuss whether the Veteran's service-connected diabetes mellitus requires insulin, restricted diet, and regulation of activities (meaning avoidance of strenuous occupational and recreational activities) for its control and/or involves episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. (b) Please identify and assess the severity of all complications of the Veteran's diabetes. Please specifically discuss the February 2014 VA examiner's finding of symptoms of voiding dysfunction and state whether those symptoms are at least as likely as not (a 50 percent probability or greater) a complication of the Veteran's diabetes. Please also differentiate any eye disabilities considered to be complications of diabetes and any considered to be due to other etiologies. In doing so, please specifically discuss and reconcile with your findings any inconsistent medical evidence of record, including the findings of the September 2007, February 2014, and March 2014 VA examiners regarding whether the Veteran's glaucoma and cataracts are related to his diabetes; and the findings of the September 2007 and March 2014 VA examiners and in the Veteran's VA treatment records regarding whether he has diabetic retinopathy. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. A discussion of the underlying reasons for all opinions expressed must be included in each examiner's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If an examiner is unable to provide an opinion without resorting to speculation, he or she must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 3. After completing the requested actions and any additional development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).