Citation Nr: 1301907 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-48 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1969 to July 1971, to include duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 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 in this case contends that his diabetes, currently evaluated as 20 percent disabling, is more severe than what is contemplated by that rating. Essentially, he contends that a higher evaluation is warranted. Prior to making any factual determination on this matter, the Board must initially note that the record does not appear to be complete. Specifically, it is indicated that the Veteran receives disability benefits from the Social Security Administration (SSA); however, records from that agency, or at least, readable records from that agency, are not contained in the claims file. Indeed, it is apparent that VA noted that the Veteran has been in receipt of SSA disability benefits since December 2006, and a request was sent for records to be forwarded from that agency. A compact disc is in the claims file, and while there is no identification on that piece of media, it is possible that SSA records are contained therein. Unfortunately, the disc is not readable, and any information contained in the disc cannot be accessed. Thus, it is requested that SSA be contacted and that paper copies of the Veteran's records from that agency be obtained and associated with the claims file. Records held in federal custody, to include those held by SSA, are deemed to be constructively part of the record (even if not physically present in the claims file). See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the Board cannot issue a final adjudication on this matter without consideration of the records. In addition, the Board notes that the Veteran has twice been examined by VA for the purposes of determining the severity of his diabetes. The most recent examination, dated in December 2011, while fairly recent, is somewhat confusing with respect to the conclusions reached in the opinion. Specifically, the examining physician's assistant (PA) initially stated that there was regulation of activities due to the Veteran's diabetes, and that due to the diabetic complications of retinopathy, cardiac disease, and nephropathy, there was interference with the Veteran's ability to work (Veteran had previously been awarded a total rating due to individual unemployability (TDIU), and is currently receiving a total schedular rating for a cardiac disability). An addendum opinion, attached to the examination report shortly after the Veteran had been examined, confirmed that the Veteran cannot lift more than 25 pounds; however, the examiner stated that there was no regulation of activities associated with diabetes. Moreover, in a rather conclusory assessment, the examiner stated that the diabetes alone does not have any impact on the Veteran's occupational functioning. This addendum opinion also corrected the hospitalization history of the Veteran, and noted that there had been no hospitalization for diabetic manifestations within the previous 12 months. Simply put, the Board must note that the SSA records were not available for review by either the 2008 or 2011 VA examiner, and that there remains confusion as to what, if any, regulation of activities (i.e. impact on employment or other strenuous activities) comes from the service-connected diabetes (to include its complications) specifically. Thus, upon receipt of the SSA records, a new examination should be afforded. Accordingly, the case is REMANDED for the following action: 1. Contact SSA and obtain all records from the Veteran. Specifically, all records pertaining to the award of disability benefits from that agency in December 2006 should be obtained, and paper copies associated with the claims file. Should no such records exist after an exhaustive search, annotate the record. 2. Schedule the Veteran for a comprehensive VA endocrinology examination, with an examiner other than the PAs who conducted the 2008 and 2011 VA examination, for the purposes of determining the severity of service-connected diabetes. In this regard, the examiner should afford all tests deemed necessary, should review the claims file (to include those records obtained from SSA), and should specify as to if regulation of activities is necessary due to the diabetes (to include impact on occupational functioning). Rationales should accompany all conclusions reached. 3. Following the above-directed development, conduct a de novo review of the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case to the Veteran and his representative and forward the claim to the Board for adjudication. 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. 2012). _________________________________________________ MARK W. GREENSTREET 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).