Citation Nr: 1761176
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 10-31 735 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
1. Entitlement to service connection for diabetes mellitus type II.
2. Entitlement to service connection for a left foot skin disorder, claimed as “jungle rot.”
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Kettler, Associate Counsel
The Veteran served on active duty from February 1969 to January 1973.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
The Board remanded the claim in November 2015 for additional development.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review.
A review of the record discloses that the Veteran receives treatment for his diabetes and left foot skin disability from the VA Ashtabula County Community Based Outpatient Clinic (CBOC). See December 2015 Statement in Support of Claim. However, no records from this facility appear within the claims file. Therefore, an attempt must be made to obtain all of the Veteran’s VA treatment records from the VA Clinic located in Ashtabula, Ohio to associate them with the claims file. See Dunn v. West, 11 Vet. App. 462, 466-467 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
With respect to the claim seeking service connection for diabetes mellitus, the Veteran suggested that his diabetes may have been a result of direct military service and direct exposure to Agent Orange. See December 2015 Statement in Support of Claim. The RO submitted a Joint Services Records Research Center (JSRRC) request for information regarding the Veteran’s alleged Agent Orange exposure. In September 2016, the JSRRC response was negative in that there was no evidence that tactical herbicides were transported to, used, stored, or buried on Okinawa, Japan. See September 2016 DPRIS Response.
However, the Board notes that even if the Veteran is not entitled to presumptive service connection secondary to herbicide exposure, VA must also consider the claim on a non-presumptive direct evidentiary basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.304(d) (2017). As such, the Board finds that the Veteran should be afforded a VA examination so as to determine the nature and etiology of his diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Finally, in regards to the Veteran’s left foot skin disorder, as detailed in the Board’s prior August 2014 remand, the report of the June 2013 VA examination was inadequate as it did not provide an etiology opinion for any possible left foot fourth and fifth interdigit eschar-covered ulceration. The Board instructed that such an etiology opinion should be obtained in an addendum opinion while on remand. In this matter, the Board finds that the October 2016 VA opinion is inadequate as it did not address the left foot whatsoever. As such, this is a failure to follow the Board’s August 2014 remand instructions, for which VA has a duty to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board is remanding this claim once again for an accurate and fully descriptive VA medical opinion on the etiology of the Veteran’s left foot skin disorder, to include a possible left foot fourth and fifth interdigit eschar-covered ulceration. Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Accordingly, the case is REMANDED for the following action:
1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any from the Ashtabula County CBOC.
2. After all outstanding records have been associated with the record, schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus. The record, to include a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All appropriate tests and studies should be performed, and all clinical findings must be reported in detail.
The examiner must confirm the diagnosis of diabetes mellitus.
The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset during, or is otherwise related to, his active military service.
The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.
3. Return the claims file to the examiner who provided the October 2016 addendum opinion (or another appropriate examiner if that examiner is unavailable) for an opinion which fully addresses the nature and etiology of the Veteran’s left foot skin disorder, to include possible left foot fourth and fifth interdigit eschar-covered ulceration. The examiner must note in the opinion that the evidence in the claims file has been reviewed.
The examiner must identify any current left foot skin disorder.
The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left foot skin disorder had its onset during, or is otherwise related to, his active military service.
If the examiner’s opinion with respect to a diagnosis differs from any other diagnosis, specifically the June 2013 VA examination, the examiner must reconcile his or her findings and conclusions with the previous diagnoses. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.
4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).