Citation Nr: 1301893	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  09-32 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to a rating higher than 20 percent for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to January 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetes mellitus type II and assigned a 20 percent rating.  A notice of disagreement was received in December 2008, a statement of the case was issued in July 2009, and a substantive appeal was received in August 2009.

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

The Veteran's representative noted in a December 2012 statement that the most recent VA diabetes examination occurred in July 2008, more than four years earlier.  While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  The Veteran has alleged in statements that VA is not considering more recent treatment records and that the current rating does not reflect his current state of impairment.  The representative's statement and those of the Veteran arguably advance an implicit claim that the diabetes disability is more severe than shown on the 2008 VA examination.  To fully assist the Veteran, a more current examination is appropriate. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should secure for the record copies of the complete updated (since July 2009) clinical records of any VA treatment the Veteran has received for his diabetes.

2.  The RO should then schedule the Veteran for an appropriate VA examination to ascertain the current severity of his diabetes mellitus, including any diabetic complications.  The Veteran's claims file must be furnished to the examiner for review in connection with the examination.  Examination findings should be reported to allow for application of VA rating criteria for diabetes and all potential complications.

3.  After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claim.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter 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. 2012).


_________________________________________________
ALAN S. PEEVY
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) (2012).