Citation Nr: 1308169 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-37 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection diabetic retinopathy, to include as secondary to diabetes mellitus or service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from February 1971 to February 1974 and from January 1981 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appellant's claim for service connection for diabetes mellitus was characterized as a claim to reopen a claim for service connection for diabetes. The appellant's claim for service connection for diabetes mellitus was previously denied in an August 1995 rating decision. In June 2010, VA received the service records from the appellant's first period of service from February 1971 to February 1974. These records were not associated with the claims file at the time of the August 1995 rating decision. A September 1973 service treatment record reflects that the appellant had "borderline" diabetes mellitus. A January 1974 service treatment record indicates the appellant had "probable latent diabetes mellitus." Thus, the service treatment records are relevant to the appellant's claim. Pursuant to 38 C.F.R. § 3.156(c)(1), as amended effective October 6, 2006, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1)(i)-(iii) (2012). As the service treatment records were not associated with the claims file and are relevant to the appellant's claim, the previously denied claim must be reconsidered, not reopened. 38 C.F.R. § 3.156(c). Accordingly, the issue has been recharaceterized. In January 2013, a Central Office hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. 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 As was noted above, in light of the receipt of relevant service department records which were not previously associated with the claims file, the claim must be reconsidered on the merits. The Board finds that a VA examination is necessary to assist the appellant in substantiating his claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant's VA treatment records reflect that he has current diagnoses of diabetes mellitus, type II and diabetic retinopathy. See March 2007 VA treatment record. The September 1973 service treatment record indicated the appellant was "borderline" diabetes mellitus based on his blood glucose level. The January 1974 service treatment record reflects that the appellant had "probable latent diabetes mellitus." The record noted that the appellant had experienced several months of weight loss and fatigue and he had a former history of diabetes mellitus. Diabetes mellitus is not noted on the appellant's February 1974 separation examination report. Additionally, the appellant's service treatment records from January 1981 to January 1984 do not reflect that the appellant had diabetes mellitus. However, as the appellant had a current diagnosis of diabetes mellitus and was diagnosed with "probable" diabetes mellitus in service, there is an indication that the appellant's current diabetes mellitus may be related to service. Accordingly, a medical nexus opinion is necessary to decide the claim. As the appellant has also been diagnosed with diabetic retinopathy and is service-connected for hypertension, and opinion should be obtained as to whether the appellant's diabetic retinopathy is caused or aggravated by his diabetes mellitus or service-connected hypertension. At the January 2013 hearing, the appellant testified that he received regular treatment at VA, including treatment for his eyes. (January 2013 Board Hearing Transcript at 5-6) The VA treatment records may be relevant to his claims and the VA treatment records in the file only date to March 2007. Consequently, the Board requests the appellant's complete VA treatment records from March 2007 to present. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from March 2007 to present. If no records are available, the claims folder must indicate this fact. 2. After completion of the above, schedule the appellant for a VA examination to provide opinions as to the following: (i) Whether it is at least as likely as not (50 percent probability) that the appellant's diabetes mellitus its onset during active service or is related to any in-service disease, event, or injury, to include the diagnoses of "borderline" and "probable latent" diabetes mellitus. See September 1973 and January 1974 service treatment records. (ii) Whether it is at least as likely as not (50 percent probability) that the appellant has an eye disability, to include diabetic retinopathy, that is caused or aggravated by diabetes mellitus or service-connected hypertension. the appellant has retinopathy that is caused or aggravated The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).