Citation Nr: 1808110 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus, type II prior to September 9, 2013, and in excess of 20 percent thereafter. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to or aggravated by service-connected diabetes mellitus, type II. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Douglas E. Sullivan, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, granted service connection for diabetes mellitus, type II, evaluated as 10 percent disabling, effective May 1, 2012, and denied service connection for high blood pressure and entitlement to individual unemployability. The Veteran filed a timely notice of disagreement (NOD) in October 2013. In an April 2014 rating decision, and during the pendency of the appeal, the RO granted an increased rating for diabetes mellitus, type II, evaluated at 20 percent effective September 9, 2013. As this grant does not represent a maximum grant of the benefits sought on appeal, the increased rating claim remains before the Board. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. In a September 2015 rating decision, the RO granted entitlement to service connection for bilateral upper and lower diabetic peripheral neuropathy, effective May 15, 2015, evaluated at 30 percent disabling for right upper extremity, 20 percent for left upper extremity, and 10 percent each for lower left and right extremities. The Veteran filed a timely NOD with the disability evaluations and effective dates for the ratings and his NOD was acknowledged by the RO in a September 2015 letter to the Veteran. Additionally, in a May 2017 rating decision, the RO denied entitlement to special monthly compensation. The Veteran filed a timely NOD, which was acknowledged by the RO in a June 2017 letter to the Veteran. As the RO appears to be acting upon the Veteran's NODs, these claims remain pending before the RO. In a December 2017 rating decision, the RO denied service connection for sleep apnea and urinary incontinence. The Board notes that if the Veteran wishes to file a notice of disagreement with the December 2017 rating decision, he has until December 2018 to do so. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Diabetes mellitus, type II The Veteran contends that an initial disability rating in excess of 10 percent prior to September 9, 2013, and in excess of 20 percent thereafter, is warranted for his service-connected diabetes mellitus, type II. Subsequent to the April 2014 statement of the case, the Veteran submitted additional evidence in the form of a Disability Benefits Questionnaire. Additionally, the RO has continued to obtain and associate with the Veteran's claims file VA treatment records pertinent to his claim for an increased rating for diabetes mellitus, type II. Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his agent because his VA Form 9 is dated after February 2, 2013, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (2012). Further, waiver of a supplemental statement of the case (SSOC) is only applicable to evidence submitted by the Veteran or his agent. See 38 C.F.R. § 20.1304. As such, the claim must be remanded so that an SSOC addressing the additional VA-generated evidence may be issued. See 38 C.F.R. §§ 19.31, 19.37 (2017). Hypertension The Veteran contends that service connection is warranted for hypertension, to include as due to herbicide agent exposure or, alternatively, as secondary to or aggravated by service-connected diabetes mellitus, type II. The evidence reflects that the Veteran was diagnosed with hypertension as early as January 2004. A June 2014 Diabetes Mellitus Disability Benefits Questionnaire reflects that an examiner found that the Veteran's hypertension was at least as likely as not due to or aggravated by his diabetes mellitus. However, a rationale or basis was not provided for the finding. In a May 2015 Service Connection Questionnaire, a VA physician, Dr. C., found that the Veteran had a diagnosis of chronic hypertension, and that the chronic hypertension was at least as likely as not attributable to or aggravated beyond its natural progression by his diabetes mellitus condition, noting that uncontrolled diabetes or uncontrolled hypertension can worsen either condition. VA treatment records reflect that the Veteran presented the Service Connection Questionnaire to Dr. C. to be filled out; however, it is not clear from the Questionnaire or the Veteran's treatment records whether Dr. C. was the Veteran's treating physician or reviewed the Veteran's claims file or medical history prior to filling out the form. Furthermore, it is not clear whether Dr. C.'s opinion was a general observation of the relationship between uncontrolled diabetes and hypertension, or specific to this Veteran. The Board notes that while the Veteran reported having uncontrolled diabetes, see September 2013 and April 2015 VA treatment records, the Veteran other times reported that his diabetes condition was controlled and his treating clinicians noted that the condition was well-controlled. See May 2012, January 2014, April 2014, and September 2014 VA treatment records. For these reasons, the Board finds that the June 2014 and May 2015 opinions are inadequate to establish service connection for hypertension. As the medical evidence of record is insufficient to determine whether the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus, the Board finds that a remand is warranted for a VA examination and medical opinion to determine the nature and etiology of the Veteran's hypertension. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). TDIU The Veteran contends that he is entitled to a total disability rating based on individual unemployability due to his service-connected disabilities. Since the Veteran's claim for TDIU was last adjudicated by the RO, the Veteran has been granted an increased rating for his service-connected posttraumatic stress disorder, as well as granted service connection for bilateral upper and lower extremity peripheral neuropathy, evaluated at 30 percent disabling for right upper extremity, 20 percent for left upper extremity, and 10 percent each for lower left and right extremities. As the record now reflects an increase in the Veteran's service-connected disabilities, the issue of TDIU must be remanded to the RO for adjudication. Furthermore, a decision on the increased rating claim for diabetes mellitus, type II and service connection claim for hypertension being remanded herein may affect the claim for TDIU. Any grant of an increased rating or service connection claim could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran's overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Prior to obtaining a new VA examination and medical opinion, any outstanding, pertinent VA outpatient treatment records and private treatment records identified by the Veteran should be obtained. The most recent VA outpatient treatment records on file are dated in January 2018. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records dated since January 2018 and any private treatment records identified by the Veteran. 2. Then, schedule Veteran for VA examination to determine the nature and etiology of his hypertension. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's hypertension began during service, manifested within one year of discharge, or is otherwise related to any injury or event during service, to include exposure to herbicide agents. (b) If it is determined that the Veteran's hypertension did not begin during service or is not otherwise related to any incident of active service, then the examiner must opine as to whether it is at least as likely as not that the Veteran's hypertension is caused or aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected diabetes mellitus, type II. If the examiner finds that the hypertension is aggravated by the diabetes mellitus, type II, then he or she should quantify the degree of aggravation, if possible. In formulating the opinion, the examiner should consider the etiological opinions of record, to include from June 2014 and May 2015. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After completing the above, and any other development as may be indicated, the Veteran's claims for an increased rating for diabetes mellitus, type II, service connection for hypertension, and entitlement to TDIU should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. PARAKKAL 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).