Citation Nr: 1325388 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-19 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1971, and from September 1975 to February 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Upon review of this case, it is unclear whether, in addition to the issue currently before the Board, the Veteran seeks entitlement to service connection for ischemic (coronary artery) disease. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the current severity of the Veteran's service-connected diabetes mellitus. In that regard, pertinent evidence of record is to the effect that the Veteran's diabetes mellitus has in the past been controlled with medication, specifically, Metformin. However, more recently submitted evidence would appear to indicate that control of the Veteran's service-connected diabetes mellitus now requires insulin at the rate of three injections per day, in addition to Metformin. Significantly, while in a Disability Benefits Questionnaire dated in January 2012, one of the Veteran's physicians indicated that no regulation of activities was required as part of medical management of the Veteran's diabetes mellitus, as of the time of a subsequent VA general medical examination the following month, the Veteran was described as exhibiting a "plodding gait" compatible with diabetic foot syndrome, such that he had "distinct difficulty" in walking straight. Moreover, according to the examining physician, the Veteran's "unsteadiness" was noticeable with normal walking. The Board observes that, at the time of a VA neurologic examination, likewise conducted in February 2012, it was noted that the Veteran had no apparent sensory perception in the region of his toes and feet. Further noted was that the Veteran had ataxia, and, by his own account, could not feel his feet when they touched the ground. Significantly, in a statement of mid-March 2012, a private endocrinologist indicated that the Veteran had clear difficulty in walking a straight line due to diabetic neuropathy of his feet. Such findings raise some question as to whether the Veteran's diabetes mellitus might have increased in severity since the time of his most recent VA examination in February 2012, at this point, approximately one and one-half years ago. Based on the aforementioned, the Board is of the opinion that an additional, more contemporaneous VA examination would be appropriate prior to a final adjudication of the Veteran's claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA examination by an appropriate examiner in order to more accurately determine the current severity of his service-connected diabetes mellitus. The Veteran is to be notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the aforementioned examination, and in accordance with the latest worksheets for evaluating service-connected diabetes mellitus, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the current severity of his service-connected diabetes mellitus. In so doing, the examiner should specifically comment as to whether, due exclusively to the Veteran's service-connected diabetes mellitus, he is subject to the regulation of his activities (defined as the avoidance of strenuous occupational and recreational activities). A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for an increased evaluation for service-connected diabetes mellitus. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in June 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).