Citation Nr: 0810495 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-09 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus prior to October 25, 2005. 2. Entitlement to a rating in excess of 40 percent for diabetes mellitus from October 25, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from June 1969 to June 1971. He served in Vietnam from November 1969 to October 1970, and his awards include the Combat Infantryman Badge and the Purple Heart Medal. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In an August 2004 rating decision, the RO denied increased ratings for the veteran's service-connected post-traumatic stress disorder (PTSD) and diabetes mellitus, then respectively rated as 70 percent and 20 percent disabling. The veteran disagreed, and he and perfected his appeal as to the denial of each of the increased rating claims. Following that, the RO, in a rating decision dated in January 2006, granted an increased rating, from 20 percent to 40 percent, for diabetes mellitus effective October 25, 2005, and continued the 20 percent rating prior to October 25, 2005. The veteran continued his appeal and testified at a hearing held at the RO in April 2007. In August 2007, the Board granted a 100 percent rating for PTSD and remanded the diabetes mellitus claim. The Appeals Management Center (AMC) continued the previously assigned ratings for diabetes mellitus, and the case has been returned to the Board for further appellate consideration. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the veteran if further action is required. REMAND After completion of the development requested by the Board in its August 2007 remand, the AMC continued the 20 percent rating for diabetes mellitus prior to October 25, 2005, and the 40 percent rating from that date. The AMC returned the case to the Board in late February 2008. In March 2008, the veteran wrote to the Board concerning VA treatment he had received for his diabetes mellitus during 2006 and 2007 and his participation in a VA diabetes education program in which he was enrolled at the time of his letter. With his letter, he enclosed a February 2008 statement from his wife in which she described her observations of the veteran's symptoms and her participation in his care. In addition, the veteran submitted a June 2007 letter from the Social Security Administration (SSA) notifying him that he was entitled to monthly disability benefits beginning in September 2007. It is apparent that the veteran believes this information to be relevant to his increased rating claims. Rather than requesting that the veteran decide whether he wishes to waive consideration of this evidence by the agency of original jurisdiction under the provisions of 38 C.F.R. § 20.1304, the Board will remand the case so that action may be taken to obtain records SSA considered in arriving at its disability determination. In this regard, VA has a duty to obtain SSA records when it has actual notice that the veteran is receiving SSA benefits. See Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002); Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Action should be taken to contact SSA and obtain and associate with the claims file copies of the veteran's records regarding SSA benefits, including the medical records upon which the current and any prior decision was based. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). Recently, in January 2008, the United States Court of Appeals for Veterans Claims (Court) issued a decision in which it specified its interpretation of notice VA must provide a veteran in an increased rating claim to assure compliance with the provisions of 38 U.S.C. § 5103(a). Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Court stated that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores, 22 Vet. App. at 43. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Id. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. Although the veteran has received notice that complies at least partially with the requirements outlined above, the Board will request that he now be provided with complete notice that complies fully with the notice requirements outlined by the Court in Vazquez-Flores. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a letter explaining, in terms of 38 U.S.C. §§ 5103 and 5103A, the need for additional evidence regarding his increased rating claims. The letter must inform the veteran about the information and evidence that is necessary to substantiate the claims, notify him of the type of evidence that VA will seek to provide, inform him of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession that he has not submitted previously. It is essential that this letter notify the veteran that, to substantiate his increased rating claims: (1) he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) he must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). 2. Obtain and associate with the claims file VA medical records for the veteran dated from October 2007 to the present. 3. Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the veteran's records regarding SSA disability benefits, including all SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 4. Then, after completion of any other development indicated by the state of the record, including a VA examination if deemed appropriate, readjudicate entitlement to a rating in excess of 20 percent for diabetes mellitus prior to October 25, 2005, and entitlement to a rating in excess of 40 percent for diabetes mellitus from October 25, 2005. If any benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case (SSOC) that addresses all evidence added to the record since the November 2007 SSOC. The veteran and his representative should be provided an opportunity to respond. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).