Citation Nr: 1314810 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-15 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial increased disability rating in excess of 30 percent for service connected coronary artery disease. 2. Entitlement to an initial increased disability rating in excess of 20 percent for service connected diabetes mellitus, type II. 3. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. 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 A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). At the outset, the Board recognizes that several records are absent from the claims file. The RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In October 2009, the Veteran stated that he received treatment from the VA Medical Center in Montgomery, Alabama. Additionally, in a June 2011 statement, he reported receiving treatment from the VA Medical Center in Birmingham, Alabama. These records are absent from the record and are possible relevant to the Veteran's claim. Thus, on remand, the RO must secure any outstanding records and associated with the claims file. In addition, the Veteran contends that his coronary artery disease and diabetes mellitus, type II, are more severely disabling than reflected in the disability evaluation assigned. Under the Veterans Claims Assistance Act of 2000 ("VCAA"), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that takes into account records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). Review of the claims folder reveals that the Veteran was afforded a VA examination in December 2008, over four year ago. As such, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green, 1 Vet. App. at 124. In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facilities, namely in Birmingham and Montgomery, and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his coronary artery disease. The VA examiner should identify all present symptoms and manifestations attributable to the Veteran's service connected coronary artery disease, in accordance with the rating criteria specified at 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). The examiner should provide to the greatest extent possible comprehensive information that addresses all components of the applicable rating criteria -- to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; and commentary on the presence, or lack thereof, of chronic congestive heart failure, and its frequency. If any of the foregoing information cannot be provided without resort to speculation, the examiner should clearly and specifically so specify in the report, and explain why this is so. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review is accomplished. Any and all studies deemed necessary should be completed 3. Once all outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination with an appropriate examiner determine the current degree of impairment due to his service connected diabetes mellitus, type II, in accordance with the rating criteria specified at 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The examiner should report the current symptoms and manifestations associated with the Veteran's service connected diabetes mellitus, type II, including specific treatment received and whether he continues to require insulin and a special or restricted diet. The examiner should also discuss whether the Veteran is restricted in his ability to perform strenuous activities due to his diabetes mellitus, type II. The examiner should also report any complications or symptoms associated with the Veteran's service connected diabetes mellitus, type II. The examiner is specifically requested to fully describe the functional effects caused by the Veteran's service-connected disability. If any of the foregoing information cannot be provided without resort to speculation, the examiner should clearly and specifically so specify in the report, and explain why this is so. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review is accomplished. Any and all studies deemed necessary should be completed. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the instruction above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).