Citation Nr: 21030912 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-05 363 DATE: May 20, 2021 REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with peripheral vascular disease (carotid artery disease) and erectile dysfunction, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the United States Army from March 1968 to March 1974, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). The Veteran, in his October 2015 appeal to the Board, requested a travel Board hearing, which was scheduled to be held at a Regional Office in March 2017. However, the record reflects that the Veteran did not appear for the hearing and the Board has not received a request to reschedule the hearing. Therefore, the appeal proceeds as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). In November 2017, the Board remanded this matter to the AOJ for further development. In September 2020, the Veteran's claim was again remanded to the AOJ so that he could be afforded VA examinations to ascertain the severity of his diabetes mellitus and to determine whether a separate compensable rating is warranted for his peripheral vascular disease and whether eye diagnoses are related to his diabetes. See Board Remand dated September 21, 2020. The Board notes that in a November 2020 rating decision, the AOJ granted service connection for diabetic neuropathies of the bilateral upper and lower extremities and denied increased ratings for diabetic neuropathies for the bilateral lower extremities and diabetic retinopathy with cataracts and macular edema. See Rating Decision dated November 12, 2020. Nevertheless, the Board finds there has not been substantial compliance with its September 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Although the Board sincerely regrets the additional delay, remand is again necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Treatment Records VA's duty to assist includes obtaining records of relevant VA and non-VA medical treatment. 38 U.S.C. §§ 5103A(b), (c); 38 C.F.R. §§ 3.159(c)(1), (c)(2). Critically, since the Board's September 2020 remand, the AOJ has not associated with the record an outstanding vascular consultation specifically identified in the remand as relevant to the Veteran's claim. Treatment records dated September 2020 reference a vascular consultation. See VA Podiatry Note dated September 10, 2020. Additionally, November 2020 VA treatment notes include the notation "... Non-VA care consult has been completed. See scanned document for report ... [date of service] 11/23/2020]. See VA community care-consult result note dated December 1, 2020. Neither consultation has been associated with the electronic claims file in the Veterans Benefits Management System (VBMS), which is the database available to the Board in adjudicating appeals. See Stegall, supra. Moreover, the February 2021 Supplemental Statement of the Case does not identify non-VA treatment records or vascular consultations as evidence considered in readjudicating the Veteran's claim. Id. Therefore, as the record is incomplete, it would be impossible for the Board to accurately distinguish which symptoms are associated with the Veteran's diabetes mellitus and/or his vascular peripheral disease, ascertain their severity, or determine whether a separate rating is warranted should it be determined that peripheral vascular disease is associated with his diabetes. On remand, the complete vascular consultations referred to in the September 10, 2020 and December 1, 2020 VA treatment records must be associated with the electronic claims file in VBMS for review in determining the severity of the Veteran's vascular symptoms. See Stegall, 11 Vet. App. at 271; 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). VA Examinations Once VA undertakes the effort to provide an examination or medical opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the Veteran's vascular symptoms, the Veteran was afforded a VA artery and vein conditions examination in December 2020. Contrary to the Board's September 2020 remand, the VA examiner failed to separate or distinguish the Veteran's symptoms and impairment of peripheral vascular disease and carotid artery disease from the service-connected coronary artery disease, instead noting that the Veteran denied carotid artery disease symptoms. Moreover, the Board directed that the VA examiner consider June 2019 private treatment reflecting that a carotid ultrasound was performed showing severe 60 to 79 percent bilateral carotids stenosis; however, the December 2020 VA artery and veins examination report does not reflect that this was done. Stegall, supra. A February 2021 addendum provided in reply to the AOJ's request for clarification declares that the Veteran does not have peripheral vascular disease, which is inconsistent with current diagnoses of peripheral vascular disease reflected in the June 2018 VA diabetes mellitus examination, the December 2020 VA medical opinion addressing the etiology of the Veteran's varicose veins, and recent treatment records, particularly a February 3, 2021 VA medical record, and provides no explanation as to this inconsistency. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Therefore, the December 2020 artery and vein conditions examination and the February 2021 addendum thereto are inadequate, necessitating remand for a new VA examination and opinion. See Barr, supra; Stegall, supra. Regarding the Veteran's eye disorders, contrary to the Board's September 2020 remand, the February 2021 VA eye conditions examination fails to indicate whether the eye disorders identified in the August 2018 VA examination report are related to the Veteran's diabetes mellitus, specifically: Bilateral pinguecula; bilateral corneal arcus; bilateral surgical leukoma; bilateral posterior vitreous detachment; and bilateral dipoplia. Stegall, supra. The Board may not make such determinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (Board may consider only independent medical evidence to support its findings and may not substitute its own unsubstantiated medical conclusions). Therefore, on remand, this deficiency must be addressed in an addendum opinion. See Stegall, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. Any relevant records previously associated with the claims file that are not accessible in the Veterans Benefits Management System (VBMS) shall be associated with the electronic claims file in VBMS, to INCLUDE (i) the non-VA consultation referenced in the December 1, 2020 VA Community Care-Consult Result Note as a "scanned document" (see VBMS entry with document type "CAPRI," receipt date 01/21/2021, at page 34 of 81); and (ii) a vascular consultation referenced in the September 10, 2020 VA Podiatry Clinic Note (see VBMS entry with document type "CAPRI," receipt date 01/21/2021, at page 77 of 81). If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Then, scheduled the Veteran for a VA examination to assess the current severity of his peripheral vascular disease and carotid artery disease. The examination shall be scheduled with an appropriately qualified VA examiner, preferably a physician (M.D.) who practices in vascular medicine, to the exclusion of the December 2020 and February 2021 VA examiners, if possible. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All signs and symptoms of the Veteran's disability(s) must be reported in detail and the examiner should specifically have the Veteran provide a full account of his symptoms. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify and separate/distinguish the Veteran's symptoms/impairment for his peripheral vascular disease/carotid artery disease from his service-connected coronary artery disease. *The examiner should consider the June 2019 private treatment record reflecting that a carotid ultrasound was performed showing severe 60 to 79 percent bilateral carotid stenosis. The examiner must provide a complete rationale for all opinions proffered. 3. Obtain an addendum opinion from the same VA examiner who conducted the February 2021 VA eye conditions examination, if available. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to respond to the following: (a) For each of the Veteran's eye disorders that are not already service-connected, and most recently identified in the August 2018 and February 2021 VA examinations, opine as to whether each eye disorder is related to and/or is a complication of the Veteran's service-connected diabetes mellitus. *The examiner should fully describe all symptomatology and functional deficits associated with each eye disorder. The examiner must provide a complete rationale for all opinions proffered. 4. Thereafter, ensure that the examiners have substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim, to include as to whether the Veteran is entitled to SEPARATE COMPENSABLE ratings for vascular, carotid artery, and eye disorders that are related to his service-connected Type II diabetes mellitus. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.