Citation Nr: 1007993 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 06-31 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Regional Office in Augusta, Maine THE ISSUE Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had various periods of active duty for training from May 1975 to April 2002, to include periods from May 15, 1975, to September 21, 1975, and from July 16, 1983, to November 19, 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. The Veteran testified at a hearing before a Decision Review Officer at the RO in November 2006. A transcript of the hearing is of record. He initially requested a Board hearing, but withdrew that request in October 2006. In a July 2008 decision, the Board granted restoration of service connection for diabetes mellitus, Type II, and remanded the issue of entitlement to a higher initial rating for diabetes mellitus for additional development. The claim has been returned to the Board for appellate action. REMAND The Veteran seeks a rating in excess of 20 percent for type II diabetes mellitus. The record reflects findings consistent with possible related conditions to include erectile dysfunction and retinopathy. The Board notes that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See Note (1). The VA examinations provided in connection with this issue were performed in 2005 in response to the Veteran's claim for service connection, and in 2009 following the Board remand. The Board has determined that the October 2009 report of examination alone is not adequate for rating purposes because the examiner did not identify the degree of visual impairment resulting from the Veteran's retinopathy. The examiner referenced a September 2009 VA eye examination, but a report of such an examination is not in the claims folders. The Board further notes that under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus if it requires insulin and a restricted diet, or if an oral hypoglycemic agent and restricted diet are required. The next higher rating of 40 percent is warranted if insulin, restricted diet, and regulation of activities are required. In essence, the pertinent distinction between the 20 percent and 40 percent levels is the requirement of regulation of activities. Nonetheless, findings related to complications such as erectile dysfunction and diabetic retinopathy must also be considered to determine if separate compensable ratings are warranted. In light of the deficiencies in the record caused by the lack of VA examination findings related to the eye, the Board has determined that the aforementioned September 2009 examination report should be located, if it exists. If it does not, the Veteran should be afforded another VA examination. Moreover, as it appears that the Veteran has continued to receive VA treatment for his diabetes mellitus type II and related conditions, updated VA treatment records should be obtained. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent VA treatment records dated since July 2009. It should also undertake appropriate development to obtain any pertinent evidence identified but not provided by the Veteran. If it is unable to obtain any such evidence, it should so inform the Veteran and his representative and request them to provide the outstanding evidence. 2. The RO or the AMC should attempt to locate a copy of the report of the September 2009 VA eye examination and associate it with the claims folders. If it is unavailable, the Veteran should be afforded an examination by an examiner with appropriate expertise to determine the current nature and extent of his diabetic retinopathy. The claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should also provide an assessment of the impact of the disability on the Veteran's daily activities and ability to work. The rationale for each opinion expressed must also be provided. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant unless he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). _________________________________________________ Shane A. Durkin 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).