Citation Nr: 1325396 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-18 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial increased rating for diabetes mellitus, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from January 1968 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, granted entitlement to service connection for diabetes mellitus associated with herbicide exposure, with an initial rating of 20 percent assigned, effective January 11, 2007. Although the Veteran initially appealed other issues adjudicated in that rating decision, he only perfected an appeal of the rating assigned for diabetes. A July 2009 rating decision granted an increased rating of 40 percent, effective June 8, 2009. In January 2011, the RO granted an earlier effective date of May 9, 2006, for the 20 percent initial rating. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial rating for diabetes remains before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The records contained in the virtual file have been reviewed. 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 In June 2009, the Veteran provided an authorization form allowing VA to obtain private treatment records from Dr. Seger and the Health First Medical Group. He reported treatment from 1995 to present. The records from this physician were requested once in May 2008 and in July 2008, the physician provided some records dated through May 2008. The records were accompanied by a note which stated that all of the records currently located at that the physician's office were being provided, however, they were attempting to find his additional records, which were stored in a separate warehouse. The note called the records provided in July 2008 "part one of two." No additional records were obtained and a request for records was not made after the Veteran's June 2009 authorization form was provided. It is clear from this evidence that there are outstanding private treatment records. The Board requests that this opportunity is taken to obtain outstanding records of ongoing VA treatment as well. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Ask the Veteran to provide a current release authorizing VA to obtain all records of private treatment with Dr. Seger, referenced in the June 2009 authorization form. The request should include records since July 2008 as well as any additional records not previously provided. If the Veteran fails to complete necessary authorization, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 3. Once the above development has been completed, readjudicate the claim to determine whether an addendum to the July 2011 VA examination or a new VA examination is required. If so, obtain the examination or addendum. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 2002 & Supp. 2012). _________________________________________________ THOMAS J. DANNAHER 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).