Citation Nr: 1325159 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-40 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a separate, compensable initial rating for erectile dysfunction. 2. Entitlement to a separate, compensable initial rating for hypertension. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. This case 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 New York, New York. In this rating decision, the RO granted the Veteran's claim of entitlement to service connection for type II diabetes mellitus with erectile dysfunction and hypertension, and assigned a single, 20 percent rating. The Veteran requests separate, initial evaluations for his erectile dysfunction and hypertension. In November 2011, the Veteran testified before the undersigned at a Board hearing at the RO. A copy of the hearing transcript has been associated with the record. Although the RO granted service connection for erectile dysfunction, it does not appear that the RO assigned an award of special monthly compensation for loss of use of a creative organ, under 38 U.S.C.A. § 1114(k) (West 2002). See 38 C.F.R. § 3.350(a)(1) (2012). As such, a claim of entitlement to special monthly compensation for loss of use of a creative organ is referred to the RO for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran's type II diabetes mellitus with erectile dysfunction and hypertension is rated 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2012). The Veteran alleges that he should be afforded separate ratings for his erectile dysfunction and hypertension, which are currently considered part of the "diabetic process." At his Board hearing in November 2011, the Veteran testified that he has been undergoing regular treatment for his diabetes mellitus and hypertension at the Bronx, New York, VA Medical Center (VAMC). See Board Hearing Tr. at 7-8. The most recent medical records in the Veteran's claims file are from July 2010-approximately three years ago. As such, the Board finds that VA should obtain these records before adjudicating the claims on the merits as they may be pertinent to the issues on appeal. See 38 C.F.R. § 3.159 (2012). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Furthermore, the Veteran's last VA examination occurred over four years ago, in March 2009. No claims file was provided to the examiner, and the Veteran's blood pressure was taken without discussion as to his history. Under these circumstances, and to ensure that the record includes sufficient medical findings to adequately assess the current nature and severity of the Veteran's service-connected disabilities, the Board finds that the Veteran should be given another opportunity to undergo more contemporaneous examinations, with findings responsive to the applicable rating criteria. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the Bronx VAMC all updated pertinent records of evaluation and/or treatment related to the Veteran's diabetes mellitus, hypertension, and/or erectile dysfunction since July 30, 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After all requested records are received and associated with the claims file, the RO should arrange for the Veteran to undergo VA cardiovascular examination, by an appropriate examiner, to assess the current severity of his hypertension. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. 3. After all requested records are received and associated with the claims file, the RO should also arrange for the Veteran to undergo VA genitourinary examination, by an appropriate examiner, to assess the current severity of his erectile dysfunction. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. 4. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 5. After completing the requested actions, the RO should adjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ LAURA H. ESKENAZI 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).