Citation Nr: 1324784 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-10 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes mellitus type II. 3. Entitlement to service connection for lip cancer. 4. Entitlement to service connection for high blood pressure. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from April 1974 to April 1977 and from January 2004 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In January 2011, the Veteran presented testimony relevant to the appeal before the undersigned Veterans Law Judge at a Travel Board hearing held in Newark, New Jersey. A transcript of the Board hearing is associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND At the January 2011 Board hearing, the Veteran testified that he was diagnosed with diabetes mellitus, peripheral neuropathy, lip cancer, and hypertension within a year of separating from active service in April 2005. See also July 2009 Notice of Disagreement (wherein the Veteran asserted that he has had diabetes mellitus since 2005). He reported that a private doctor initially diagnosed diabetes mellitus, which was later confirmed by VA. He further stated that his diabetes mellitus, as well as his other claimed disabilities, were treated through the James J. Howard outpatient clinic in Brick, New Jersey since 2005 and the VA New Jersey Health Care System in East Orange, New Jersey since 2006. The record contains VA treatment records from the James J. Howard outpatient clinic dated from July 2006 to May 2007; however, those records were obtained in connection with the Veteran's service connection claim for posttraumatic stress disorder and pertain to mental health treatment. The VA treatment records do not contain any evidence of treatment for physical disability. While a May 2010 VA Diabetes health summary is also included in the record and generally shows treatment for hypertension, diabetes, and lip cancer, a request for VA treatment records dated from 2005 to the present pertaining to any treatment that the Veteran has received for the claimed disabilities has not yet been made. Therefore, the Board finds that a remand to obtain any pertinent treatment records from the James J. Howard outpatient clinic in Brick, New Jersey from April 2005 to the present and the VA New Jersey Health Care System in East Orange, New Jersey from January 2006 to the present is warranted. See 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). Furthermore, at the January 2011 Board hearing, the Veteran reported that he had already submitted all pertinent treatment records from his private physician. See January 2011 Board hearing transcript, page 4. However, review of the record reveals that only lab reports dated from April 2005 to October 2008 are of record, and no private treatment records pertinent to the appeal have been submitted by the Veteran. Therefore, on remand, he should be asked to provide authorization and consent for the release of the private treatment records so that VA may obtain them in connection with the appeal or, in the alternative, submit the private treatment records to VA in support of the appeal. Accordingly, the case is REMANDED for the following actions: 1. Obtain any treatment records pertaining to the Veteran's treatment for diabetes mellitus, peripheral neuropathy, lip cancer, and high blood pressure at the James J. Howard outpatient clinic in Brick, New Jersey from April 2005 to the present and at the VA New Jersey Health Care System in East Orange, New Jersey from January 2006 to the present. Once obtained, the treatment records should be associated with the record. The search should include any archived or retired records, if applicable. Any and all negative responses should be properly documented in the record, to include following the procedures outlined in 38 C.F.R. § 3.159(e). 2. Ask the Veteran to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for medical records pertaining to any private medical treatment received for diabetes mellitus. After obtaining a completed VA Form 21-4142, obtain the medical records. He should also be advised that he may alternatively submit the private treatment records to VA himself. Any documents received by VA should be associated with the record. Any and all negative responses should be properly documented in the record, to include following the procedures outlined in 38 C.F.R. § 3.159(e). 3. Thereafter, readjudicate the claims on appeal. If any benefit remains denied, provide a supplemental statement of the case with an appropriate period of time for response by the Veteran and the representative. Thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ L. HOWELL 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).