Citation Nr: 21077407 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-13 918 DATE: December 29, 2021 REMANDED Entitlement to a separate, compensable disability rating for nuclear sclerotic cataract and branch retinal vein occlusion of the right eye, associated with type II diabetes mellitus, is remanded. Entitlement to service connection for sleep apnea as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for hypertension as secondary to type II diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1963 to March 1967, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. In November 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge, sitting in St. Louis, Missouri. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 30 days to allow for the submission of additional evidence. 1. Entitlement to a separate, compensable disability rating for nuclear sclerotic cataract and branch retinal vein occlusion of the right eye, associated with type II diabetes mellitus The Veteran seeks a separate, compensable disability rating for right eye visual impairment associated with type II diabetes mellitus, described as nuclear sclerotic cataract and branch retinal vein occlusion of the right eye. He has stated that his peripheral vision is blurred and that he has to wear glasses. See March 2014 notice of disagreement. During the November 2021 Board hearing, he asserted that his vision had worsened since the time that a September 2013 Disability Benefits Questionnaire (DBQ) had been completed by a private provider. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Furthermore, the Board notes that the September 2013 DBQ is inadequate for rating purposes. Specifically, the private provider did not include data for uncorrected distance, uncorrected near, or corrected near visual acuity. Furthermore, although the September 2013 private provider noted that the Veteran had ptosis of the bilateral upper lids, bilateral nuclear cataracts, and bilateral cortical cataracts, the provider did not complete Section IV(7) of the DBQ pertaining to cataracts and other lens conditions. In light of the foregoing, a new examination is required. 2. Entitlement to service connection for sleep apnea as secondary to type II diabetes mellitus 3. Entitlement to service connection for hypertension as secondary to type II diabetes mellitus A February 2014 VA examiner reviewed the Veteran's claims file and opined that his hypertension and sleep apnea were less likely as not (less than 50 percent likely) proximately due to his service-connected type II diabetes mellitus because "[t]here is no credible medical evidence that lists [type II diabetes mellitus] as a cause of" sleep apnea or hypertension. In February 2017, a VA examiner reviewed the Veteran's claims file and opined, in essence, that it was unlikely that the Veteran's hypertension or sleep apnea had been aggravated by his service-connected type II diabetes mellitus. The examiner explained that diabetes is not an etiology or risk factor for the development or aggravation of sleep apnea; that for aggravation of hypertension to occur, there would have to be abnormal renal function; and that the Veteran's renal function was normal. In arriving at their opinions, neither the February 2014 nor the February 2017 examiners commented on the medical articles the Veteran submitted in March 2014 pertaining to the potential association between diabetes, sleep apnea, and hypertension. Under the circumstances, additional development is warranted. Updated records of VA treatment should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA's duty to assist extends to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance). These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an eye examination. The examiner should utilize the relevant Disability Benefits Questionnaire and provide a full description of the Veteran's service-related functional impairments as they relate to the relevant rating criteria. The final report should identify any eye impairments that are at least as likely as not (i.e., are 50 percent or more likely) attributable to diabetes, as well as any eye impairments that are unlikely to be attributable to (i.e., unlikely to be caused or aggravated by) diabetes. For any eye impairment(s) that are at least as likely as not attributable to diabetes (to include the nuclear sclerotic cataract and branch retinal vein occlusion of the right eye that has been service connected), the report must clearly reflect the functional loss occasioned by each such impairment. The final report must reflect whether the Veteran has had surgery to remove his cataract(s) and whether he has replacement lens(es) for his cataract(s). The report must also address the likelihood that he experiences dizziness or balance issues that can be attributed to diabetes-related impairment of the right eye, as his representative has suggested. An explanation for all opinions expressed must be provided. 4. Arrange to have the Veteran scheduled for a VA examination for sleep apnea. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected type II diabetes mellitus (or any other service-connected disability). In so doing, the examiner should consider and discuss the medical articles the Veteran submitted in March 2014 pertaining to the potential association between diabetes and sleep apnea. An explanation for all opinions expressed must be provided. 5. Arrange to have the Veteran scheduled for a VA examination for hypertension. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) the Veteran's hypertension has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected type II diabetes mellitus (or any other service-connected disability). In so doing, the examiner should consider and discuss the medical articles the Veteran submitted in March 2014 pertaining to the potential association between diabetes and hypertension. An explanation for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate Counsel 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.