Citation Nr: 1708115 Decision Date: 03/16/17 Archive Date: 04/03/17 DOCKET NO. 09-34 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating higher than 20 percent for diabetes mellitus from June 18, 2009. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active military service from September 1961 to June 1984. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the benefit sought on appeal. The Veteran withdrew a Travel Board hearing request in August 2010. In an April 2014 decision, the Board, in pertinent part, denied entitlement to a disability rating higher than 20 percent for diabetes mellitus from June 18, 2009. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per an October 2015 Court Memorandum Decision, the portion of the Board's decision that denied entitlement to a disability rating higher than 20 percent for diabetes mellitus from June 18, 2009, was vacated and remanded for compliance with the Memorandum Decision. In May 2016, the Board remanded the Veteran's claim for additional evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Veteran contends that he is entitled to a rating higher than 20 percent for his service-connected diabetes mellitus from June 18, 2009. Before a decision can be reached on the Veteran's claim, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). As noted in the Introduction, the Veteran's claim was remanded in May 2016 for additional development. Specifically, the VA examiner was directed to discuss whether medical evidence specifically establishes that the Veteran's diabetes mellitus requires the avoidance of occupational and recreational activities of a strenuous nature. The remand also directed the VA examiner to discuss specifically the Veteran's private treatment providers' statements submitted in June 2009 and March 2016 as well as the findings of the January 2014 VA examiner. The Veteran was afforded a VA examination in October 2016. However, the examiner did not opine specifically as to whether the Veteran's diabetes mellitus requires the avoidance of occupational and recreational activities of a strenuous nature. Moreover, the VA examiner did not discuss the private treatment providers' statements and the findings of the VA examiner mentioned above. Thus the Board finds that the October 2016 VA examination did not substantially comply with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the October 2016 VA diabetes mellitus examination for an addendum. The entire claims file, to include a copy of this remand, must be made available and reviewed by the designated examiner. If the October 2016 VA examiner is not available, another qualified examiner should provide the addendum. The Veteran should be scheduled for a physical examination only if determined necessary by the examiner. Regarding the issue of the Veteran's regulation of activities, the examiner must discuss whether evidence establishes that the Veteran's diagnosed diabetes mellitus requires the avoidance of occupational and recreational activities. In rendering an opinion, the examiner must also discuss specifically the private treatment providers' statements submitted in June 2009 and March 2016, as well as the findings of the January 2014 VA examiner. In particular, the VA examiner should consider the following: In the June 2009 letter, the Veteran's private physician stated that management of diabetes "is more than medication and [the Veteran] tried to incorporate diet and exercise to help with treatment. [He] has some limitation of activity with his disease." He also stated that he had "taken the time to research [the Veteran's] exercise regimen and he has recorded his blood glucose levels after working out or doing activity which would show how much activity he could actually do." The physician found that the Veteran's experiences of hypoglycemic episodes following exercise "proved he had low blood sugars and was symptomatic with certain amount of exercise (working 1/2 hour on elliptical)." The physician listed the Veteran's self-documented blood sugar levels and concluded that the findings showed that the Veteran "is restricted in his exercise/activities as a diabetic." Similarly, in a March 2016 statement, a second private treatment provider stated that she had reviewed the Veteran's "chart" and that he was "participating in a physical fitness program to include walking and riding a recumbent bicycle 3-5 days per week. He is to perform low impact exercise regimen. He is to avoid strenuous occupational and recreational activities" due to his diabetes. The January 2014 VA examination conclusion that diabetes mellitus type II has promoted decrease in overall strength, generalized fatigue and wanting to sleep often, and need to monitor daily activities as hypoglycemia is an issue with overexertion. This would not exclude the ability to work in either sedentary or physical occupations, but would moderately impair function in either sedentary or physical occupations, requiring ability to take frequent breaks and flexibility with hours working to accommodate for need to eat and rest accordingly. The examiner must address with specificity the October 2016 VA examination report in which the examiner notes that more than one injection of insulin is required per day. This fact must be considered when the examiner renders an opinion as to whether the Veteran diabetes mellitus requires the avoidance of occupational and recreational activities. The examiner must set forth the complete rationale for all opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate. Citations to the record or relevant medical principles must be included as necessary to explain the examiner's opinions. 2. After completing the above development and any other action deemed necessary, re-adjudicate the Veteran's claim. If any benefit sought is not granted, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. The matter should then be returned to the Board for appropriate appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. HENEKS 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) (2016).