Citation Nr: 18155426 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-35 735 DATE: December 4, 2018 REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II (“diabetes”), is remanded. Entitlement to an increased rating exceeding 20 percent for service-connected diabetes mellitus, type II (“diabetes”), on an extraschedular basis only, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to November 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. These matters were previously before the Board in March 2014, February 2016, and September 2017, all of which were remanded for additional development. The Board notes that there was not substantial compliance with its September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Regrettably, the Board finds that another remand is necessary. 1. Entitlement to service connection for hypertension, to include as secondary to diabetes, is remanded. The Board finds that further development of the medical evidence is required prior to adjudicating the Veteran’s service connection claim for hypertension, to include as secondary to diabetes. Where VA provides the Veteran with an examination, such examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2017, an additional medical opinion was submitted by a contractor, LHI, Inc., in response to the Board’s September 2017 remand. However, the Board finds that this opinion, again, did not provide an adequate rationale in support of the ultimate determination that the Veteran’s hypertension was not directly related to his military service, nor was it caused or aggravated by the Veteran’s service-connected diabetes. The September 2017 remand requested that a new medical opinion regarding the Veteran’s hypertension be completed by a “qualified VA physician,” with emphasis on addressing the treatise evidence submitted by the Veteran’s representative in a February 9, 2016 brief. After review of the October 2017 medical opinion, it does not reveal that the medical opinion was conducted by a qualified VA physician, as the opinion was signed by J.P., a physician assistant; and the opinion does not reflect any evidence to the contrary. Furthermore, a review of the medical opinion does not reflect that the submitted treatise evidence by the Veteran’s representative in February 2016 was considered in rendering the opinion against a finding for service connection on a direct and/or secondary basis. Therefore, the Board finds that another remand is necessary to afford the Veteran a new medical examination and opinion in compliance with Stegall. 2. Entitlement to an increased rating exceeding 20 percent for service-connected diabetes, on an extraschedular basis only, is remanded. The September 2017 remand noted that in a December 2016 Supplemental Statement of the Case (SSOC), the RO indicated that referral to the VA’s Director of Compensation Services for extraschedular consideration of the Veteran’s service-connected diabetes was not warranted. However, it was further noted that the RO did not address the “collective impact” of the Veteran’s other service-connected disabilities – tinnitus, left lower extremity diabetic sensory polyneuropathy, right lower extremity diabetic sensory polyneuropathy, and bilateral hearing loss – as was required in the Board’s February 2016 remand directives, and pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (requiring that consideration on an extraschedular basis must have consideration of the “collective impact” of a Veteran’s service-connected disabilities in assessing the disability picture). Subsequently, another SSOC was issued by the RO in September 2018. Upon review, the Board is not satisfied that this adequately addresses and/or discusses the “collective impact” of the Veteran’s other service-connected disabilities. The language used in the September 2018 SSOC mimics most of the same language used in the December 2016 SSOC, which was found to not be compliant under Stegall in the previous remand; and this discussion does not clearly reflect that consideration was given beyond the Veteran’s service-connected diabetes. Additionally, since the issuance of the September 2017 remand, the RO issued an August 2018 rating decision that awarded the Veteran an increased rating for his service-connected left lower extremity diabetic sensory polyneuropathy and right lower extremity diabetic sensory polyneuropathy, based on new medical evidence of record. These increased ratings were not previously considered by the RO, and should be considered in addressing the Veteran’s “collective impact” in making the determination if extraschedular consideration is warranted. Therefore, based on the above, the Board finds that another remand is necessary to afford consideration of the new increased ratings issued, and to obtain a new SSOC in compliance with Stegall. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. As development of the Veteran’s disability claims before the Board may have an impact on the Veteran’s TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his diabetes and hypertension, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. 3. The examiner is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or higher probability): (a) that the Veteran’s hypertension had its onset during any period of active military duty, or is otherwise etiologically related to service. (b) that the Veteran’s hypertension was caused by his service-connected diabetes. (c) that the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected diabetes. The examiner must address the treatise evidence submitted by the Veteran’s representative in a February 9, 2016 brief. 4. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinions. 5. With respect to the issue of an increased rating for the Veteran’s service-connected diabetes on an extraschedular basis, the RO should determine if referral to the Director of Compensation Services for extraschedular consideration under 38 C.F.R. § 3.321(b)(1), and in accordance with the decision in Johnson v. McDonald, is necessary based on the collective impact of the Veteran’s service-connected disabilities in assessing his disability picture and whether it renders schedular evaluations inadequate. This determination should clearly reflect that all the Veteran’s service-connected disabilities have been considered. If the RO determines that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is necessary, such referral should be made. 6. With respect to the issue of entitlement to a TDIU, conduct any further development deemed necessary. If the Veteran does not meet the criteria for a TDIU on a schedular basis following the above, pursuant to 38 C.F.R. § 4.16(b), refer the claim of entitlement to a TDIU to VA’s Director of Compensation Services for extraschedular consideration. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel