Citation Nr: 1007302 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-21 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for diabetic neuropathy of the right upper extremity. 2. Entitlement to a rating in excess of 10 percent for diabetic neuropathy of the left lower extremity. 3. Entitlement to a rating in excess of 10 percent for diabetic neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Willett, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to July 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied entitlement to the benefits currently sought on appeal. The Board notes that on his June 2006 VA Form 9, as well as at his December 2009 Board Video Conference Hearing, the Veteran raised the issues of entitlement to service connection for erectile dysfunction and for a mental disorder, both as secondary to his service-connected diabetes mellitus. These issues have yet to be adjudicated at the RO level and are, therefore, REFERRED to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to a rating in excess of 10 percent for each of the following: diabetic neuropathy of the right upper extremity, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity. These claims are not yet ready for final adjudication as additional action is required. Under 38 C.F.R. § 3.159(c)(1) and (2), VA has a duty to assist the Veteran in obtaining relevant treatment records from both VA treatment facilities and private doctors. A review of the record reveals that the Veteran has post- service treatment from both VA and private physicians. The most recent treatment records from the VA Baton Rouge Outpatient Clinic are dated in February 2007, more than three years ago. Updated records should be obtained in order for VA to meet its section 3.159 duty to assist. Also, during his December 2009 hearing, the Veteran identified several private physicians from which he receives treatment, including a Dr. K., at Louisiana Internal Medicine, a Dr. C. with Louisiana Sports Medicine, and a Dr. B. A review of the claims folder reveals that record from Dr. K. dating between 2005 and 2006 are of record. There are no newer records from him, nor are there any records from Dr. C. or Dr. B. in the claims folder. In order to fulfill its section 3.159 duty to assist in this regard, the RO must obtain signed authorizations with regard to these privately held records, and then attempt to actually obtain those records. This matter must be remanded for this action. Finally, during the pendency of this appeal the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which placed two additional duties upon the VA. Under Dingess, VA must also provide proper notice of the evidence required to establish the degrees of disability and the effective date of an award. The April 2004 notice provided to the Veteran in this case is not in conformity with the Court's Dingess decision. Accordingly, the case is REMANDED for the following action: 1. Ensure that VA has met its duty to notify the Veteran, including issuing corrective notice fully compliant with 38 C.F.R. § 3.159(b) (2009), and Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Ensure that VA has met its duty to assist the Veteran under 38 C.F.R. § 3.159(c)(1) and (2) by obtaining all relevant, non-duplicative treatment records from both VA and private healthcare facilities, including but not limited to the VA Baton Rouge Outpatient Clinic, Dr. K., at Louisiana Internal Medicine, Dr. C. with Louisiana Sports Medicine, and Dr. B. Any non-duplicate records, as well as any negative responses to requests for records themselves or for authorizations to obtain these records should be noted in the claims folder. Associate all records obtained with the records. 3. Readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ MARJORIE A. AUER 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) (2009).