Citation Nr: 1806235 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-21 045A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide agent exposure. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a right hand disorder, claimed as numbness, to include as secondary to herbicide agent exposure. 4. Entitlement to service connection for "jungle rot" of the feet. 5. Entitlement to service connection for an eye disorder, claimed as blurred vision, to include as secondary to type II diabetes mellitus. 6. Entitlement to service connection for sleep apnea, to include as secondary to PTSD. 7. Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents and as secondary to type II diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1962 to March 1964. He served in the Republic of Vietnam. See December 2016 Board decision. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2014, the Veteran testified at a travel board hearing before the undersigned. A transcript of that hearing is of record. See Legacy Content Manager Documents. In December 2016, the Board remanded the Veteran's claims for VA examinations. In that decision, the Board also found that the Veteran served in the Republic of Vietnam, and instructed the RO to readjudicate the Veteran's claims in accordance with that finding. The Board has re-characterized the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus, to a claim of entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents and as secondary to type II diabetes mellitus. This is based on recent medical literature and the Veteran's presumed exposure to herbicide agents. The issues of entitlement to service connection for an eye disorder, sleep apnea, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The May 2017 rating decision which granted service connection for diabetes mellitus is a complete grant of the benefits sought on appeal. 2. The May 2017 rating decision which granted service connection for PTSD is a complete grant of the benefits sought on appeal. 3. The May 2017 rating decision which granted service connection for a right hand disorder is a complete grant of the benefits sought on appeal. 4. The May 2017 rating decision which granted service connection for "jungle rot" of the feet is a complete grant of the benefits sought on appeal. CONCLUSIONS OF LAW 1. There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 7104 (West 2012). 2. There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for PTSD. 38 U.S.C. § 7104 (West 2012). 3. There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for a right hand disorder. 38 U.S.C. § 7104 (West 2012). 4. There are no remaining questions of fact or law to be decided on the issue of entitlement to service connection for "jungle rot" of the feet. 38 U.S.C. § 7104 (West 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a May 2017 rating decision, the RO granted service connection for diabetes mellitus, PTSD, a right hand disorder, and "jungle rot" of the feet. This action represents a complete grant of the benefits sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As no further adjudication is required at this time, the claims shall be dismissed. ORDER The claim for service connection for diabetes mellitus, having been rendered moot, is dismissed. The claim for service connection for PTSD, having been rendered moot, is dismissed. The claim for service connection for a right hand disorder, having been rendered moot, is dismissed. The claim for service connection for "jungle rot" of the feet, having been rendered moot, is dismissed. REMAND An addendum opinion is required regarding the Veteran's claim of entitlement to service connection for an eye disorder, claimed as blurred vision, to include as secondary to type II diabetes mellitus. A July 2017 VA medical examiner opines that the Veteran's eye disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. Part of the rationale of this opinion is that there are no signs of diabetic retinopathy. In response, the Veteran points to an October 2013 VA record indicating diabetic retinopathy. See January 2018 appellate brief. Having reviewed the Veteran's medical records, the Board has identified several "Active problems" lists that indicate diabetic retinopathy as of October 16, 2013. See CAPRI records (received 12/1/16). At the same time, a September 2016 private medical record (received 1/12/17, page 13 of 32) states: "There was no sign of glaucoma or diabetic retinopathy." An addendum medical opinion is required to address these records and the Veteran's arguments. An addendum opinion is also required regarding the Veteran's claim of entitlement to service connection for sleep apnea, to include as secondary to PTSD. This opinion does not address the Veteran's arguments that "Medical Literature and VA examiners link weight gain to sleep apnea." See January 2018 appellate brief. It also does not address literature cited by the Veteran that supports a possible relationship between sleep apnea and PTSD. See March 2016 appellate brief. An addendum opinion is required to address this evidence. To the extent that the Veteran is arguing that there is a correlation between sleep apnea and obesity, the Board notes that the United States Court of Appeals for Veterans Claims has recently held that "there is currently no provision in the rating schedule to compensate for obesity." Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64, at *6 (Vet. App. Jan. 23, 2018). Finally, an addendum medical opinion is required regarding the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus. A February 2017 VA examiner opines that the Veteran's hypertension is less likely than not related to diabetes mellitus. The examiner does not address direct service connection for hypertension, to include as a result of exposure to herbicide agents. Hypertension is not listed as a disease associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e). However, the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-27 (Aug. 10, 2012). An addendum medical opinion is required to assess entitlement to service connection as due to exposure to herbicide agents. VA treatment records to September 7, 2017, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from September 8, 2017, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from September 8, 2017, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: a. Whether the Veteran has any current or previously-diagnosed eye disorder; b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed eye disorder was incurred in the Veteran's service; and c. Whether the Veteran has any current or previously-diagnosed eye disorder that (i) is proximately due to the Veteran's service-connected diabetes mellitus or (ii) was aggravated by the Veteran's service-connected diabetes mellitus. In reaching these opinions, the examiner should the Veteran's arguments as contained in the January 2018 appellate brief and address the apparent discrepancy between records indicating that the Veteran has diabetic retinopathy (CAPRI records, received 12/1/16) and records indicating that the Veteran does not have diabetic retinopathy (private medical record, received 1/12/17, page 13 of 32). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: a. Whether the Veteran has any current or previously-diagnosed sleep apnea; b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed sleep apnea was incurred in the Veteran's service; and c. Whether the Veteran has any current or previously-diagnosed sleep apnea that (i) is proximately due to the Veteran's service-connected PTSD or (ii) was aggravated by the Veteran's service-connected PTSD. In reaching these opinions, the examiner should consider the arguments contained in the January 2018 appellate brief and the literature cited in the March 2016 appellate brief. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: a. Whether the Veteran has any current or previously-diagnosed hypertension; b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed hypertension was incurred in the Veteran's service, including but not limited to exposure to herbicide agents; and c. Whether the Veteran has any current or previously-diagnosed hypertension that (i) is proximately due to the Veteran's service-connected diabetes mellitus or (ii) was aggravated by the Veteran's service-connected diabetes mellitus. In reaching these opinions, the examiner should consider the National Academy of Sciences Institute of Medicine (NAS) study suggesting that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-27 (Aug. 10, 2012). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. 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. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs