Citation Nr: 21003929 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-27 111 DATE: January 25, 2021 REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to service connection for a traumatic brain injury (TBI) secondary to diabetes mellitus is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to October 1989 and from November 1998 to September 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran’s representative provided argument at a Central Office hearing before the undersigned Veterans Law Judge (VLJ). Due to his TBI, the Veteran was unable to attend or otherwise present testimony at the hearing. Considering the unique circumstances of this case, the VLJ permitted the then representative to provide such argument. A transcript of that proceeding is of record. This case was last before the Board in April 2018 when it was remanded for additional development. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. 2. Entitlement to service connection for a traumatic brain injury (TBI) secondary to diabetes mellitus is remanded. 3. Entitlement to SMC based on the need for aid and attendance is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the April 2018 remand directed that outstanding records contained within VistA Imaging be obtained and that addendum opinions be obtained to address the Veteran’s increased rating and service connection claims. As an initial matter, the referenced records from VistA Imaging have not been associated with the claims file and there is no indication what, if any, efforts were made to obtain them. While a diabetes examination was provided in January 2020, in opining that the Veteran’s diabetes mellitus did not require regulation of activities, the examiner did not, as directed, address the February 2010 statement from the Veteran’s private physician. Likewise, while addendum opinions regarding the Veteran TBI were obtained in January 2020 and April 2020, neither opinion addressed all the evidence specified the April 2018 remand. Accordingly, there has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence indicates there may be outstanding relevant VA treatment records. A July 11, 2019 VA treatment record indicates that the Veteran was to return for a follow up appointment on May 13, 2020. VA treatment records subsequent to September 23, 2019 have not been associated with the claims file. Additionally, VA treatment records from June 28, 2010, July 6, 2010, July 8, 2010, July 25, 2010, July 27, 2010, July 28, 2010, July 29, 2010, January 22, 2011, June 9, 2011, November 22, 2011, March 3, 2016, and April 20, 2018 note that an unidentified non-VA care record had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. The record indicates that there are also outstanding private treatment records. VA treatment records from May 7, 2019 and July 11, 2019 indicate that the Veteran was a patient at “Sitter and Barefoot” nursing home and that he received care, including diabetic management, from the “housestaff physician, Dr. Fischer.” To date, records from have not been requested or otherwise obtained. Additionally, the April 2020 VA clinician stated that the Emergency Medical Services (EMS) report would be helpful in determining whether the Veteran’s diabetes played a role in his April 15, 2010 motor vehicle accident (MVA). While the record contains hospitalization records from the day of the accident, it does not appear that EMS records have been obtained. On remand, reasonable efforts should be made to obtain them. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including Dr. Fischer of Sitter and Barefoot and the EMS report from the Veteran’s April 15, 2010 MVA. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dated since September 23, 2018 as well as the VistA Imaging records referenced in the April 20, 2018, August 17, 2016, March 3, 2016, January 7, 2016, March 2, 2015, September 29, 2014, May 16, 2013, April 23, 2013, April 17, 2013, February 15, 2013, January 25, 2013, January 4, 2013, January 2, 2013, November 21, 2012, October 17, 2012, July 17, 2012, June 16, 2012, November 10, 2011, January 22, 2011,September 17, 2010, August 23, 2010, July 29, 2010, July 28, 2010, July 27, 2010, July 25, 2010, July 23, 2010, July 21, 2010, July 20, 2010, July 19, 2010, July 14, 2010, July 13, 2010, July 12, 2010, July 11, 2010, July 8, 2010, July 7, 2010, July 6, 2010, July 4, 2010, July 2, 2010, July 1, 2010, June 30, 2010, June 28, 2010, June 25, 2010, June 22, 2010, June 19, 2010, June 10, 2010, June 9, 2011, June 8, 2010, June 7, 2010, June 2, 2010, June 1, 2010, May 28, 2010, May 25, 2010, and May 24, 2010 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above record development is completed to the extent possible, forward the claims file to an appropriate VA clinician to obtain addendum opinion regarding whether the Veteran’s diabetes management requires regulation of activities. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the clinician should indicate whether the Veteran’s diabetes requires regulation of activities (avoidance of strenuous occupational and recreational activities). In so opining, the clinician should consider the February 2010 statement from the Veteran’s private physician indicating that the Veteran had recurrent hypoglycemic episodes that were precipitated by heavy work or heavy lifting, suggesting that regulation of activities is necessary. A complete rationale for any opinion expressed should be provided. 3. After the above record development is completed to the extent possible, forward the claims file to an appropriate VA clinician to obtain an opinion concerning the Veteran’s TBI claim. If an examination is deemed necessary to respond to the request, one should be scheduled. Following review of the claims file, the physician should provide an opinion as to whether it is at least as likely as not that (50 percent or greater probability) that the Veteran’s diabetes caused the motor vehicle accident in April 2010 that resulted in his severe TBI. In rendering the above requested opinion, the physician should address the April 15, 2010 glucose readings of 343 and 295, the April 15, 2010 toxicology report indicating a presumptive positive for cocaine and a finding of “2140”mg/L for ethanol, the May 15, 2010 VA social work note indicating that Veteran’s father and estranged wife reported that the Veteran had two blackouts while driving prior to the April 2010 accident, the February 1, 2010 record from Cape Fear Valley Health System noting that the Veteran reported several severe hypoglycemic episodes, including one that caused him to wreck his truck, and the treatise evidence regarding the relationship between diabetes and safe driving. A complete rationale for any opinion expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.