Citation Nr: 0810692 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-31 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded the veteran service connection for diabetes mellitus, with a 20 percent initial rating, and peripheral neuropathy of the lower extremities, with 10 percent initial ratings for each lower extremity. The veteran subsequently initiated appeals of these determinations. In September 2007, he testified before the undersigned Acting Veterans Law Judge, seated at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Considering first the veteran's increased initial rating claim for his service-connected diabetes mellitus, the Board notes he testified in September 2007 that he has received treatment for this disability from a private physician, Dr. A.D., M.D., over the past 10 years. The Board held the record open for a period of 60 days following the hearing, to allow the veteran to obtain copies of relevant treatment records and to have them associated them with the claims file. However, in December 2007, the veteran sent VA written authorization to obtain such records on his behalf. In light of these facts, this issue must be remanded to the RO to obtain and consider this relevant private medical evidence. In that regard, the Board notes that VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). This duty includes obtaining pertinent medical records identified by the veteran. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2007). Next, the Board finds that the issues of entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, and entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, must be remanded for the following reasons. A careful review of the claims file reveals that following the March 2005 rating decision, the veteran submitted a notice of disagreement in June 2005, in which he disagreed with the recent VA decision. In August 2005, the RO issued a statement of the case (SOC) as to the claim for a higher rating for diabetes, and in September 2005 the veteran submitted a substantive appeal. However, the RO did not issue an SOC on the peripheral neuropathy of the lower extremities until January 2007. Moreover, the cover letter for the SOC mistakenly explained that the document was a supplemental statement of the case (SSOC), in which a response is generally optional. The SOC also indicated that a substantive appeal had been received in September 2005, and included an issue which had already been the subject of an statement of the case and been perfected on appeal, and should therefore have been included in a supplemental statement of the case, rather than an SOC. Due to this confusion, there was some question at the Board hearing as to whether the peripheral neuropathy issues were on appeal. The Board took testimony on those issues, at least as relates to the diabetes issue. In reviewing this matter more closely, it appears that the substantive appeal was valid as to the issues related to peripheral neuropathy of the lower extremities, and those issues are deemed on appeal. See Archbold v. Brown, 9 Vet. App. 124, 131 (1996). Unfortunately, those issues are not ready for adjudication, for the same reason as the diabetes issue, outlined above. That is, the private medical records that VA must assist the veteran in obtaining in this case may contain evidence relevant to the peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. The RO must send a letter to Dr. A.D., accompanied by a copy of the signed authorization form submitted by the veteran in December 2007, requesting copies of the veteran's medical treatment records for diabetes for the past ten years. If no such records are available or if Dr. A.D. fails to respond, that fact should be noted for the record, and the veteran must be so notified, and provided an opportunity to submit the records himself. In that regard, the veteran retains the right to obtain and submit such evidence on his own behalf. 2. After undertaking any additional development deemed appropriate, and giving the veteran full opportunity to supplement the record, the RO should then adjudicate the veteran's three following claims on appeal, in light of any additional evidence added to the record: (1) entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus; (2) entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity; and (3) entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Board offers no opinion at this time regarding the ultimate outcome of this appeal. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ LAURA H. ESKENAZI Acting 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).