Citation Nr: 1804154 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 07-37 946A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as secondary to the service-connected irritable bowel syndrome (IBS). 2. Entitlement to an initial rating in excess of 30 percent for depressive disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty service from February 1980 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2007 and August 2008. The March 2007 rating decision denied service connection for diabetes mellitus and the August 2008 rating decision granted service connection for depressive disorder and assigned a 30 percent rating effective March 17, 2006. The Veteran presented testimony on the claim for service connection at a personal hearing before a Decision Review Officer in July 2008 and on both claims at a personal hearing before the undersigned Veterans Law Judge in August 2009. Transcripts of both hearings are of record. The Board remanded the claims in December 2009, September 2011 and October 2014 for additional development. In August 2015, the Board issued a decision that denied the claims listed on the title page. The Veteran appealed the Board's August 2015 decision to the United States Court of Appeals for Veterans Claims (Court) and in an October 2016 Joint Motion for Partial Remand (Joint Motion), which will be described in further detail below, the parties requested that the Court vacate the August 2015 Board decision that denied entitlement to service connection for diabetes mellitus and to an initial rating in excess of 30 percent for depressive disorder. In a November 2016 Order, the Court granted the Joint Motion. In the August 2015 decision, the Board remanded claims for entitlement to an evaluation higher than 30 percent for the service-connected IBS and entitlement to a total disability rating based on individual unemployability (TDIU). Those claims remain in remand status and will be the subject of a subsequent decision, if necessary. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2006). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Allen Court held that where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448 (emphasis added). In this case, there is no opinion that adequately addresses the degree of worsening, if any, attributable to the IBS. In this regard, the record clearly shows noncompliance with diabetic treatment as impacting diabetic control. While the favorable opinions from Dr. S. suggest the Veteran has worked hard to control his diabetes, such opinions fail to mention his history of noncompliance despite her own treatment records indicating that the Veteran has been noncompliant. See April 30, 2013 treatment report; April 22, 2009 consult letter from Dr. E, and June 12, 2012 consult letter from endocrinologist Dr. H. Moreover, the record contains voluminous treatment records addressing the Veteran's diabetes and IBS. Most of those records make clear that the Veteran is noncompliant with his treatment regime for diabetes. For example, it was noted that he was afraid of needles and avoided his insulin shots, that he was noncompliant with diet and exercise (October-November 2000 VA treatment notes), that he was experimenting with insulin dosage on his own (July 2003 and September 2004 VA treatment notes), that he was noncompliant with clinical recommendations and the main obstacle in controlling his diabetes was inconsistencies in meal pattern and diet control (May 2006), that he was not taking insulin correctly resulting in multiple hypoglycemic episodes (September 2006), and that he had "very poor compliance for diabetes" (April 2008 note by Dr. E.). VA diabetes clinic notes in October to December 2008 and in January to July 2009 state the Veteran was not recording his blood sugars or bringing his blood glucose log to clinic and was not following clinical guidance about when to take his insulin. Some of the medical records also suggest that the Veteran's IBS symptoms were making it difficult to control his diabetes. For example, a December 2000 VA treatment note indicates IBS may be a factor in lack of diabetes control; a June 2008 consult with Dr. H. noted IBS problems would make it challenging to manage diabetes; and a February 2010 VA treatment note indicated IBS made diabetes hard to control. Some records suggest both noncompliance and IBS as factors with diabetes. For example, a March 2011 VA internal medicine note stated blood sugar control was difficult secondary to IBS but also noted it was questionable whether the Veteran was self-administering insulin at more than the prescribed dose. A May 2011 VA diabetes progress note stated the Veteran's report of recent "crashing sugars" was not supported by his continuous glucose management system (CGMS) and that the excursions and low blood glucose levels were a result of poor understanding of diabetes concepts and lack of appreciation for insulin dosing. A June 2011 VA diabetes progress note cited a "more complicated diabetes control process due to additional IBS problems and also following own way of caring for diabetes including diet and timing of meds and meals." Thus, it is unclear to what extent, if at all, the Veteran's IBS aggravates his diabetes versus aggravation caused by noncompliance, and whether any extant aggravation is actually beyond the normal progression of this Veteran's diabetes. In this regard, the Board notes the Veteran has a strong family history of diabetes, with a sibling passing from diabetes complications at a relatively young age. While a 2013 VA endocrinologist provided an opinion concerning aggravation, such opinion was challenged by the Joint Motion for Remand for using a standard requiring a permanent increase in severity. Accordingly, the Board finds that a new opinion is needed. Relevant ongoing medical records should also be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board finds that the Veteran's claim for an initial rating in excess of 30 percent for depressive disorder is inextricably intertwined with the claim for entitlement to a TDIU that is still in remand status. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). As such, a decision on the claim for entitlement to an initial rating in excess of 30 percent for depressive disorder will be deferred. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records and associate them with the claims file. In addition, ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his diabetes. After securing any necessary releases, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible and obtained records associated with the claims file, the claims file should be forwarded to a VA endocrinologist for review. If a VA examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the endocrinologist should provide an opinion as to whether it is at least as likely as not the Veteran's nonservice-connected diabetes has been aggravated by the service-connected IBS. The endocrinologist should explain why or why not. If the endocrinologist concludes that the Veteran's diabetes has been aggravated by the IBS, the specialist should attempt to quantify the degree by which the service-connected IBS worsened the diabetes. The specialist must explain the reason for the conclusion reached. 3. After development on the claim for entitlement to a TDIU remanded in October 2016 is complete, the Veteran's claim for an initial rating in excess of 30 percent for depressive disorder should be readjudicated. 4. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant 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 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. §§ 5109B, 7112 (2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).