Citation Nr: 1000097 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-36 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus, type II, for the period from August 25, 2005 until February 8, 2007. 2. Entitlement to a disability rating in excess of 20 percent disabling for diabetes mellitus, type II, for the period beginning February 8, 2007. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The Veteran had active service from February 1968 to September 1969, from January 1991 to July 1991, and from January 2003 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. During the pendency of the appeal, the RO granted an increased disability rating of 20 percent for the period beginning February 8, 2007. Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the Veteran's claim for an increased disability rating remains on appeal as set forth above. 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 A preliminary review of the record discloses that additional development is necessary. Specifically, VA's duty to assist has not been met. There appear to be additional VA outpatient treatment records which have not been associated with the claims file. Specifically, VA records from the period from February 2006 until January 2007 list appointments the Veteran had at the San Juan VA Medical Center; however, the treatment records from these appointments are not associated with the claims file. Significantly, the March 2007 VA examination suggests the Veteran was placed on medication for the diabetes mellitus in January 2007. In other words, the treatment records may reflect findings that would support an increased disability rating for the diabetes mellitus. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (Observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims file, are in the constructive possession of the Board and must be considered). Accordingly, a remand to obtain these records is necessary prior to adjudication of the issue of an increased evaluation for the diabetes mellitus. Furthermore, there is a lack to treatment records or other evidence from which to evaluate the claim after March 2007, the date of the last VA examination. Thus, an updated VA examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support a decision on appeal for an increased rating). The state of the record is uncertain as to the severity of the Veteran's diabetes mellitus, and an updated VA examination is, therefore, needed in order to make an informed decision regarding the Veteran's current level of functional impairment and adequately evaluate his current level of disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to specify all medical care providers who treated him for his diabetes mellitus. The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. The RO/AMC should specifically request updated medical records from the San Juan, Puerto Rico VA Medical Center and associate these records with the claims file. 2. The RO/AMC shall schedule the Veteran for a VA examination to ascertain the present severity of his service-connected diabetes mellitus. The relevant evidence in the claims file should be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported. The examiner is requested to review all pertinent records associated with the claims file, particularly records of treatment for diabetes mellitus, and offer comments and an opinion as to the severity of the disability. The examiner is requested to opine as to whether the Veteran requires insulin and/or a restricted diet. The extent, if any, to which his activities are regulated due to the diabetes mellitus should also be addressed. The examiner should describe what, if any, complications attributable to the Veteran's service-connected diabetes mellitus exist, to include any peripheral neuropathy, diabetic neuropathy, or sexual dysfunction found on examination, and specifically describe the nature and severity of each. If the Veteran does not suffer any such complications as a result of his diabetes mellitus, the examiner should so state. The examiner is asked to opine on the impact of the claimed increase in severity of the disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. 2009). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2009).