Citation Nr: 21009417 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 10-21 649 DATE: February 22, 2021 REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a kidney disability other than nephropathy to include bilateral renal cysts is remanded. Entitlement to service connection for an eye disability also claimed as due to the service-connected diabetes mellitus, type II is remanded. Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for major depressive disorder is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from January 1966 to January 1968. The Board notes that when this appeal was last before the Board in October 2017 the issues of entitlement to service connection for peripheral neuropathy of the left and right upper extremities, and hypertension were remanded for further development. In an August 2020 rating decision, however, service connection for peripheral neuropathy of the left and right upper extremities was granted. In an October 2018 rating decision, service connection for hypertension was granted. As the benefits sought on appeal have been granted, the Board no longer has jurisdiction over these issues. Regarding the remaining issues on appeal, the Board finds that further development is still necessary for proper development of the claims. To that end, in an August 2019 Social Security Administration (SSA) inquiry, it was noted that the Veteran was entitled to Social Security benefits as of November 1995 and that current entitlement was May 2011. It appears, however, that not all of the medical records and decisions relating to the Social Security Administration grant of benefits have been associated with the claims file. As such, a remand is necessary to obtain and associate with the claims file any relevant Social Security Administration records and decisions. With regard to the claim for service connection for an eye disability to include as due to the service-connected diabetes mellitus, the Board notes that the Veteran was afforded a VA examination in January 2018 and March 2019. The VA examiner diagnosed bilateral senile nuclear sclerosis and bilateral open angle glaucoma. While the VA examiner rendered an etiology opinion on this matter, the examiner did not address/provide an etiology opinion on the previously diagnosed mild dry eyes, ocular hypertension and/or hypertensive retinopathy as requested in the prior remand. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives of October 2017 were not completely followed, the AOJ is again requested to comply with the Board's remand directives as stated below. The Veteran also appeals the denial of an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II. The record shows that the Veteran was last examined by VA in May 2015 in relation to the claim for an increased rating. The Board finds that the VA examination is too remote to adequately assess the severity of the Veteran’s service-connected diabetes mellitus. To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Lastly, the Board again notes that the Veteran has raised claims of service connection for a “foot condition,” skin disorder, sleep apnea, and psychiatric disorder. It appears that he has generally referred to these as complications of diabetes mellitus, but his allegations are not clear. In order to determine whether a VA examination is necessary, the AOJ should contact the Veteran again and request clarification as to the specific nature, onset and cause of his claimed “bilateral foot condition,” skin disorder, sleep apnea and psychiatric disorder. It is also noted that in May 2019 the Veteran indicated in his VA Form 21-8940 that he was receiving treatment for his diabetes and peripheral neuropathy from January 2019. On remand, these records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain a copy of all decisions and all medical records relied upon in conjunction with the Veteran’s claim for Social Security Administration disability benefits. All efforts to obtain the Social Security records should be fully documented, and a negative response must be provided if any decisions and/or records are not available. 2. Contact the Veteran and request clarification as to the nature, onset and cause of his claimed “bilateral foot condition,” skin disorder, sleep apnea and psychiatric disorder. Also, assist him in obtaining any outstanding and relevant private records to include, but not limited to, diabetes mellitus treatment records, and records from Dr. Vargas and other provider from whom he sought psychiatric treatment. 3. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s eye disability. If, after review of the electronic file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner must be provided access to the Veteran’s electronic claims file. The examiner is asked to identify all eye diagnoses, including the previously considered refractive error, mild dry eyes, ocular hypertension and hypertensive retinopathy. In doing so, the examiner is requested to discuss whether the eye diagnoses are proper and currently asymptomatic, or a misdiagnosis. For any proper diagnosis other than refractive error, opine whether it is at least as likely as not (50 percent or greater probability) that such eye disorder is proximately due to, or the result of his service-connected diabetes mellitus, type II. If not proximately due to or the result of his service-connected diabetes mellitus, type II, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that such eye disorder has been functionally increased in the severity by his service-connected diabetes mellitus, type II (a medically discernible increase in symptoms, even if temporary, beyond the baseline level of disability). In providing this opinion, the examiner should reconcile the July 2008 VA examiner opinion that the Veteran manifested intermittent loss of vision as a diabetic related visual symptom, and noted that the Veteran was found to have cataracts with the May 2008 examiner opinion attributing mild dry eyes, bilateral senile cataracts, ocular hypertension and hypertensive retinopathy as being caused by refractive error rather than service-connected diabetes mellitus, type I. A complete, well-reasoned rationale must be provided for any opinion offered. The examiner should reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his diabetes mellitus. Access to the electronic record must be made available to the examiner. All testing deemed necessary should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner must state whether the Veteran’s diabetes mellitus requires insulin, restricted diet and regulation of activities (avoidance of strenuous occupational and recreational activities) to control the disease. The examiner should identify and describe all complications of the Veteran’s diabetes mellitus. A rationale for any opinion expressed should be provided. (continued on the next page) 5. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.