Citation Nr: 1013286 Decision Date: 04/07/10 Archive Date: 04/14/10 DOCKET NO. 05-18 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to April 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a May 2009 Board decision, it was determined that for the period prior to February 13, 2008, the criteria for the assignment of an initial evaluation in excess of 20 percent for service-connected diabetes mellitus were not met. It was determined, however, that for the period beginning on February 13, 2008, the criteria for the assignment of a 40 percent evaluation, but not higher, for service-connected diabetes mellitus were met. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2009 Order, the Court granted the Joint Motion For Remand. The Board's entire decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the claim to be remanded so that an attempt could be made to obtain additional private medical records and so that a contemporaneous examination could be conducted. 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 Diabetes mellitus is evaluated according to Diagnostic Code (DC) 7913. A 20 percent disability rating is appropriate for diabetes requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent disability rating is appropriate for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating contemplates diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913 (2009). The Veteran's last VA examination for service-connected diabetes mellitus was conducted some years ago. In a statement dated in February 2008, a private physician stated that because of treatment for the Veteran's diabetes mellitus, strenuous exercise would increase his risk of severe hypoglycemia and other serious side effects. No records were associated with this statement. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, given the private physician's statement, a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the appellant and his representative and seek information concerning all treatment he has had for his diabetes since 2007. They should set out the locations and approximate dates of all treatment. To the extent treatment was with private providers, the appellant should be asked to obtain the records or provide such releases as needed to obtain records. The records obtained should include the physician who made the February 2008 statement. To the extent records cannot or are not obtained, the claims folder should contain documentation of the attempts made and appropriate notice to the appellant and his representative. 2. After the records are obtained, or determined to be unavailable, schedule the Veteran for a VA examination to determine the current severity of his diabetes mellitus. His claims file must be reviewed by the examiner in conjunction with the examination. All necessary diagnostic studies should be performed. The examiner should indicate whether the Veteran requires insulin, oral medications, restricted diet, regulation of activity or hospitalization for hypoglycemic reactions or ketoacidosis. The examiner should comment on whether the Veteran's diabetes mellitus requires regular visits to a diabetic care provider and should describe the frequency of any such visits. 3. Thereafter, the AMC/RO should readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the RO should furnish the veteran a supplemental statement of the case (SSOC) and afford them an applicable opportunity to respond. 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. 2009). _________________________________________________ MICHAEL D. LYON 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).