Citation Nr: 22040183 Decision Date: 07/12/22 Archive Date: 07/13/22 DOCKET NO. 20-17 882 DATE: July 12, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), based on service-connected diabetes mellitus alone, for the purposes of special monthly compensation (SMC) is remanded. Entitlement to service connection for an acquired mental health disorder is remanded. Entitlement to service connection for voiding dysfunction as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for muscle atrophy/abnormal muscle coordination as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for heat intolerance as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for sleep apnea as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for cataracts as secondary to service-connected diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2019 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction (AOJ)). In June 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). The Board notes that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim for the primary disability. See Bailey v. Wilkie, 33 Vet. App. 188 (2021); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); 38 C.F.R. § 3.155(d)(2) (stating that VA will consider all lay and medical evidence in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, Schedule for Rating Disabilities). Here, the Veteran contends that the complications associated with his diabetes mellitus include voiding dysfunction, cataracts, muscle atrophy/abnormal muscle coordination, fatigue, heat intolerance and sleep apnea. Therefore, the issues of entitlement to service connection for these conditions as secondary to service-connected diabetes mellitus are before the Board on appeal and are properly included in the list of issues before the Board. See 38 C.F.R. § 3.160; Bailey, supra; Kisor, supra. 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is remanded. 2. Entitlement to service connection for voiding dysfunction as secondary to service-connected diabetes mellitus is remanded. 3. Entitlement to service connection for muscle atrophy/muscle incoordination as secondary to service-connected diabetes mellitus is remanded. 4. Entitlement to service connection for heat intolerance as secondary to service-connected diabetes mellitus is remanded. 5. Entitlement to service connection for sleep apnea as secondary to service-connected diabetes mellitus is remanded. 6. Entitlement to service connection for cataracts as secondary to service-connected diabetes mellitus is remanded. 7. Entitlement to a TDIU, based on service-connected diabetes mellitus alone, for the purposes of SMC is remanded. The Veteran appeals the denial of an 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 January 2020 in relation to the claim for an increased rating. Since then, the Veteran has reported potential complications which may include voiding disfunction, heat intolerance, sleep apnea, muscle atrophy, and cataracts. See June 2021 Hearing transcript. 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"). The Board acknowledges that the Veteran has a 100 percent disability rating for coronary artery disease. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). This award, in and of itself, does not render the question of entitlement to a TDIU moot. Despite the fact that the Veteran already is in receipt of a 100 percent schedular rating for the period on appeal, VA has a duty to maximize benefits. The Board notes that special monthly compensation (SMC) at the housebound rate a payable where a veteran has a single service-connected disability rated as 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent. See 38 C.F.R. § 3.350. As such, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, VA must consider whether an award of TDIU based on a single disability is warranted, for the sole purpose of determining eligibility to a SMC. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). During the June 2021 Board hearing, the Veteran has raised the issue of entitlement to TDIU due to his service-connected diabetes mellitus alone. Thus, pursuant to Rice v. Shinseki, a TDIU claim cannot be considered separate and apart from an increased rating claim, but rather as part of a claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is remanded for appropriate development. 8. Entitlement to service connection for an acquired mental health disorder is remanded. The Veteran asserts that his acquired mental health disorder is secondary to his service-connected disabilities and medications. See June 2021 Hearing transcript. However, the Board cannot make a fully informed decision on the issue of entitlement to service connection for an acquired mental health disorder because no VA examiner has opined whether the claimed mental health disorder is caused/aggravated by his service-connected disabilities and medication. Therefore, a remand is needed to obtain a VA examination. The matters are REMANDED for the following action: 1. Obtain and associate all pertinent VA medical records not yet associated with the Veteran's claims file. 2. Assist the Veteran in obtaining the information necessary to adjudicate the issue of entitlement to TDIU solely due to service-connected diabetes mellitus. 3. After the above development, 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. Following review of the claims file, including the June 2021 hearing transcript, treatment records, and examination of the Veteran, the examiner must state whether the Veteran's diabetes mellitus requires regulation of activities (avoidance of strenuous occupational and recreational activities). In so doing, the examiner should review the record for fluctuating glucose readings which has been reported by the Veteran. The examiner should identify and describe all complications of the Veteran's diabetes mellitus. The examiner should specifically address the following: a) Whether there is a nearly equal or greater probability (nearly 50 percent or greater) that the Veteran manifests voiding dysfunction, cataracts, muscle atrophy/muscle incoordination, fatigue, heat intolerance and/or sleep apnea that is caused by his service-connected diabetes mellitus? OR b) Whether there is a nearly equal or greater probability (nearly 50 percent or greater) that diabetes mellitus has caused a medically discernible worsening (even if temporary) of voiding dysfunction, cataracts, muscle atrophy/incoordination, fatigue, heat intolerance and/or sleep apnea? The examiner is also asked to discuss the workplace limitations caused by diabetes mellitus and its complications such as how long he can sit, stand and work during an 8 hour day. The examiner should also discuss whether there is any medical reason to accept or reject the Veteran's belief that his diabetes mellitus results in the need for sleeping up to 16 hours per day. A rationale for any opinion expressed must be provided. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of his diagnosed acquired mental health disorder. The examiner(s) 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(s) should identify any psychiatric disabilities under the DSM-5 that are present. Additionally, the examiner is asked to answer the following questions: (a.) Whether there is a nearly equal or greater probability that the Veteran's acquired mental health disorder was caused by service-connected disabilities and medications? (b.) Whether there is a nearly equal chance or greater that the Veteran's service-connected disabilities and medications have caused a medically discernible increase in severity of a current acquired mental health disorder? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing the actions detailed above, readjudicate the claims remaining on appeal. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.