Citation Nr: 22017012 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-62 784 DATE: March 23, 2022 REMANDED The issue of entitlement to an extraschedular rating higher than 40 percent for diabetes mellitus type 2, to include consideration of additional compensation for symptoms believed to be side effects of diabetes medication, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision, which granted service connection for diabetes, rated as 20 percent disabling, effective January 17, 2013. The Veteran appealed the assigned rating. In March 2019, the Board assigned a higher initial rating of 40 percent for the Veteran's service-connected diabetes. The Board further found that a rating higher than 40 percent was not warranted on a schedular basis. Therefore, the issue of a higher schedular rating for diabetes has already been adjudicated and is no longer on appeal. Similarly, as explained in the March 2019 Board decision, the issue of higher initial ratings for diabetic neuropathy is not on appeal, because the Veteran did not appeal the grant of service connection for diabetic neuropathy. The March 2019 Board decision, however, remanded the issue of entitlement to an initial rating higher than 40 percent on an extraschedular basis. More specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to refer the Veteran's case to the Director of the Compensation Service, for a determination of whether the Veteran is entitled to receive a higher initial rating on an extraschedular basis, due to reported symptoms including headaches, blurry vision, stomach pain, and fatigue, which are not encompassed by the schedular criteria. Recently, in September 2021, the Board concluded that the AOJ did not comply with the March 2019 remand instructions and again remanded the Veteran's appeal. *** As noted above, the issue on appeal is simply whether an initial rating higher than 40 percent for the Veteran's diabetes is warranted on an extraschedular basis. In October 2021, the Director of the Compensation Service denied entitlement to an extraschedular rating. 10/27/2021, VA Memo. The Board, however, is not bound by an adverse determination by the Director because the Court has determined that the Director's decision is in essence a decision by the AOJ and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Turning to the evidence, a March 2013 VA diabetic clinic note indicated that the Veteran has noted some blurry vision, which was slowly improving. 10/29/2014, Medical Treatment Record - Government Facility. In October 2015, the Veteran submitted statement addressing what he described as the ongoing side effects of his mediation. In this regard, he reported shortness of breath, lightheadedness, dizziness, bouts of disorientation and confusion, blurry vision, and unsteady walking ("staggering"). He also mentioned that when he was Glyburide and Metformin, he had abdominal cramping and perpetual diarrhea. He added that he now required multiple insulin injections daily and that when he had an episode of a some or all of the symptoms listed, he was resigned to doing nothing until the episode subsides, and this could take between 10 minutes and multiple hours. He opined that these symptoms were not related to either his blood pressure or blood sugar level and attributed his eye symptoms to his diabetes. 10/12/2015, VA 21-4138 Statement in Support of Claim. In November 2015, the Veteran submitted a statement from his primary care provider, indicating that the Veteran has diabetes, diabetic neuropathy, coronary artery disease, diverticulitis, sleep apnea, hypertension, hyperlipidemia, depression, osteoarthritis, and a history of basal cell carcinoma. It was noted that the Veteran's main complaints stem from his abdominal pain secondary to significant scar tissue and nerve pain/balance issues secondary to diabetic peripheral neuropathy. It was further noted that the Veteran had been advised to work on weight loss to further control his blood sugar and decrease his shortness of breath, which may be related to excess abdominal weight on an already compromised abdominal wall structure. 11/23/2015, Medical Treatment Record - Non-Government Facility. Private treatment records further show that, in November 2015, the Veteran sent a message to his pharmacist indicating that he recently started a new medication (Novolog) and was now having significant symptoms, including daily headaches, shortness of breath, dizziness, and bouts of blurred vision. 12/01/2015, Medical Treatment Record - Non-Government Facility. Similarly, VA treatment records show that, in March 2019, the Veteran sent a message to VA providers indicating that his episodes of shortness of breath when he encounters low blood sugar spells, as well as other side effects, had increased substantially. After careful consideration of the evidence, the Board finds that additional development is necessary. As summarized above, the Veteran appears to believe that his reported shortness of breath, lightheadedness, dizziness, bouts of disorientation and confusion, blurry vision, unsteady walking ("staggering"), abdominal cramping and perpetual diarrhea are side effects of his diabetes medication. There is, however, no competent medical evidence indicating that these symptoms are in fact side effects of the Veteran's diabetes medication or, alternatively, manifestations of the diabetes disease process. In view of this, the Board finds that a VA examination and opinion addressing the nature and etiology of the Veteran's symptoms is necessary. The issue on appeal has been recharacterized to encompass the implied claim of service connection for additional disability as secondary to the service-connected diabetes mellitus type 2, to include medications used to treat diabetes. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's reported shortness of breath, lightheadedness, dizziness, bouts of disorientation and confusion, blurry vision, unsteady walking (described as "staggering"), headaches, abdominal cramping and perpetual diarrhea. The Veteran has suggested that these symptoms are secondary to past and present diabetes medications. The Board invites the examiner to review the Veteran's October 2015 statement, where he describes his symptoms, as well as the other evidence discussed in the narrative portion of this remand decision. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's symptoms cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are any of the symptoms reported by the Veteran (listed above) at least as likely as not (probability of approximately 50 percent) secondary to past or present diabetes medication? Alternatively, are any of these symptoms at least as likely as not manifestations of the Veteran's diabetes (or any other service-connected disability)? Finally, are any of these symptoms at least as likely as not manifestations of a non-service-connected disability that has been caused or aggravated by the Veteran's diabetes (or any other service-connected disability)? The examiner must consider all reported symptoms and, to the extent possible, describe the nature and etiology of each symptom. All opinions must be supported by a clear medical rationale and must address the Veteran's contention that he experiences additional disability secondary to past and present diabetes medication. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.