Citation Nr: 1300433 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-31 022 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office(RO) in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to September 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision by the RO in Columbia, South Carolina. In this decision, the RO, inter alia, granted service connection and assigned an initial 20 percent rating for diabetes mellitus. effective January 18, 2008, the date of receipt of the claim for service connection. In July 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2009 by RO in Oakland, California. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2009. A supplemental statement of the case (SOC) was issued in July 2010. As the issue on appeal involves disagreement with the initial rating assigned following the award of service connection for diabetes, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In August 2012, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. Evidence in the electronic folder is either duplicative of evidence already in the paper claims file, or is not relevant to the issue on appeal. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that, during the aforementioned Board hearing, the issues of entitlement to increased ratings for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus appear to have been raised by the Veteran (see Hearing Transcript, Pages 3-4). As the RO has not adjudicated these matters, they are not properly before the Board. Hence, these matters are referred to the RO for appropriate action, to include contacting the Veteran to determine if he wishes to pursue claims for increased compensation for his service-connected diabetic peripheral neuropathy. REMAND The Board's review of the claims file reveals that further RO action on the claim for a higher initial rating in excess of 20 percent for diabetes mellitus is warranted. The Veteran was last afforded a VA examination to specifically address his diabetes in June 2008 (a subsequent VA "Heart" examination that noted that the Veteran's diabetes was controlled with insulin was conducted in August 2009.) In the report of the June 2008 VA examination, it was noted that the Veteran's diabetes was treated with insulin and that he was on a restricted (low carbohydrate and sugar) diet. Since that time, an August 2012 statement from a VA physician received in conjunction with the Board hearing in that month indicated that the Veteran was "an insulin dependent diabetic who is potentially prone to drops in glucose levels as a result of strenuous activities" (emphasis added). The Board emphasizes that the next higher (40 percent) rating for diabetes requires insulin, restricted diet, and regulation of activities. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). "Regulation of activities" is defined as avoidance of strenuous occupational and recreational activities. Id. As such, to the extent the August 2012 physician's statement indicates that strenuous activities may be limited by diabetes, an increased rating may be assigned on such a basis. However, and as indicated by the undersigned at the hearing (see Hearing Transcript, Page 6), because the criteria for an increased rating requires "actual regulation of activities," further specificity as to the nature of any activities that must be regulated due to diabetes is necessary to determine whether the Veteran is entitled to increased compensation on such a basis. In light of the above, the Board finds that the evidence currently of record is inadequate, and that further medical findings responsive to the applicable rating criteria are needed to resolve the claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Accordingly, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim (as this claim, emanating from an original claim for, and award of, service connection will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The Board points out that, during his Board hearing, the Veteran indicated that he had an appointment scheduled on the Monday after the hearing with the VA physician who completed the August 2012 statement referenced above, and that he would solicit more specific information from her at that time as to nature of any activities that had to be regulated due to his diabetes. As such, the record was held open for 30 days following the hearing in order to allow the Veteran to submit this information. However, he failed to submit any such additional information. Accordingly, in its letter, the RO should ask the Veteran to furnish, or furnish appropriate authorization for the RO to obtain, any outstanding records from the medical provider referred to during his hearing. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is warranted. See Fenderson, 12 Vet. App, at 126. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a higher initial rating for diabetes mellitus that is not currently of record. In its letter, the RO should specifically ask the Veteran to furnish, or furnish appropriate authorization for the RO to obtain, any outstanding records from the medical provider referred to during his hearing. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, to include any outstanding records from the medical provider referred to during his hearing, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses have been associated with the claims file or a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, for evaluation of his Type II diabetes mellitus. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician must render specific findings as to whether the diabetes mellitus requires insulin; a restricted diet; regulation of activities (i.e. the avoidance of strenuous occupational and recreational activities, with specific such activities that the Veteran must avoid identified); progressive loss of weight; and/or other complications; as well as whether the condition involves episodes of ketoacidosis or hypoglycemic reactions, and if so the number of hospitalizations per year or number of monthly visits to a diabetic care provider required. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for a higher initial rating for diabetes mellitus in light of all pertinent medical evidence, (to include that added to the record since the RO's adjudication of the claim) and legal authority (to include consideration of whether staged rating, pursuant to Fenderson (cited above), is warranted.) 7. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).