Citation Nr: 1310253	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-24 837	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, with hypertension.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel

INTRODUCTION

The Veteran had active military service from September 1964 to June 1968.

This case comes before the Board of Veterans' Appeals  (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Pertinent private medical records had been received by the Board but were not associated with the claims file at the time of the November 8, 2012, Board decision.


CONCLUSION OF LAW

The November 2012 decision in this matter is vacated.  See 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Vacatur

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2012).

A Board decision was issued on November 8, 2012, which denied the Veteran's claim for an increased rating for diabetes mellitus.

In February 2013, it was discovered that pertinent evidence had been received by the Board prior to the issuance of the November 2012 decision but that had not been associated with the claims file.  Thus, that evidence was constructively in the possession of VA and should have been considered by the Board.  In this case issuance of a decision without consideration of the additional evidence was a denial of due process.  Accordingly, the Board vacates its November 2012 decision in this matter.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904.


ORDER

The Board's November 8, 2012, decision in the above-captioned appeal is vacated.


REMAND

The Veteran contends that his diabetes mellitus, which causes him to experience hypoglycemic episodes, is severe and restricts his activities.  In October 2012, his private physician stated that the Veteran's diabetes mellitus required regulation of activities as part of his medical management.  The physician also stated that the Veteran had diabetic complications to include peripheral neuropathy, retinopathy, erectile dysfunction, peripheral vascular disease, and hypoglycemia unawareness.  In a separate letter also dated in October 2012, the physician stated that the Veteran suffered from autonomic neuropathy, but did not specify whether that was related to his diabetes mellitus.  The Veteran's most recent VA examination to assess the severity of his diabetes mellitus was conducted in November 2009 and at that time, no other complication of diabetes but hypertension was diagnosed.  Therefore, in light of the new evidence demonstrating a worsening of the diabetes mellitus and the presence of diabetic complications, a new VA examination should be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's VA treatment records dated since 2009, as well as any private treatment records identified by the Veteran.

2.  Schedule the Veteran for a VA examination to determine the severity of his diabetes mellitus and to identify all diabetic residuals, as well as the severity of those residuals.  The claims file should be reviewed by the examiner.  All opinions should be accompanied by clearly explained rationale.  

a)  Determine the severity of the Veteran's diabetes mellitus.

b)  Identify all diabetic complications, to include peripheral neuropathy, retinopathy, erectile dysfunction, peripheral vascular disease, and hypoglycemia unawareness, and the severity of those complications.

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 

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).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs