Citation Nr: 1325528 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-29 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for diabetes mellitus, type II, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to March 1974. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a November 2007 rating decision that denied an evaluation in excess of 60 percent for type II diabetes mellitus. By rating action dated in September 2008, it was determined that the Veteran's January 31, 2008 claim of entitlement to a total rating based on unemployability due to service-connected disability was rendered moot by the grant of a combined 100 percent disability evaluation effective January 31, 2008. No appeal to the effective date assigned for the combined rating, or to the mooting of the unemployability claim has been presented. The Veteran was afforded a Travel Board hearing in March 2013 before the undersigned Veterans Law Judge sitting at Boston, Massachusetts. The transcript is of record. During the hearing, the appellant raised the issue of entitlement to service connection for diabetic retinopathy secondary to diabetes mellitus, type II. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. Following review of the record, 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 The Veteran asserts that the symptoms associated with his service-connected type II diabetes are more severely disabling than reflected by the currently assigned disability evaluation of 60 percent and warrant a higher rating. The appellant maintains that he requires the use of an insulin pump, and that fact alone denotes a greater degree of disability. He also argues that he has episodes of ketoacidosis and hypoglycemia, etc., for which a 100 percent disability evaluation should be granted for type II diabetes. Review of the record discloses that the Veteran has received VA outpatient treatment for symptoms attributable to type II diabetes at the Jamaica Plain VA campus. In March 2013, he presented testimony to the effect that, among other things, he saw his primary care provider for diabetes two or three times a year and went in every other month to talk to a nurse practitioner for glucose monitoring. The Board observes that the most recent VA outpatient records date through February 2008. The appellant also testified that he had been hospitalized for ketoacidosis at Lynn Hospital, a private facility, in 2011. These records should be obtained. As VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, VA outpatient records dating from November 2009 through the present must be requested and associated with the claims folder. The appellant must also be provided with the proper forms to authorize VA to secure pertinent records regarding his care at Lynn Hospital in 2011. Additionally, the record reflects that the Veteran has not afforded a VA diabetes examination for compensation and pension purposes since February 2008. Given the contentions that his symptoms warrant a higher disability rating, the possibility that there may be additional pertinent VA records, and the fact that the Veteran has not been examined by VA in over five years, a new examination is in order. 38 C.F.R. § 3.326 (2012); Olsen v. Principi, 3 Vet.App. 480, 482 (1992). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must attempt to retrieve all pertinent VA and private records that have not previously been added to the record, to specifically include diabetic treatment notes dating from November 2009 from the Jamaica Plain VA campus and the Lynn Hospital All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate these records, the AMC/RO must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the appellant should be scheduled for a VA medical examination to determine the severity of his type II diabetes mellitus and all associated residuals, including whether he has diabetic retinopathy as a result thereof. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must address whether it is at least as likely as not that any diagnosed retinopathy is caused or aggravated by the Veteran's service connected diabetes. Further, the examiner must address the severity of the appellant's diabetes mellitus, to include addressing the nature and frequency of any insulin dosage. The examiner must address whether the appellant's diabetes mellitus requires that he follow a restricted diet and regulate his activities (i.e. avoiding strenuous occupational and/or recreational activities); whether the disorder is manifested by episodes of ketoacidosis and/or hypoglycemic reactions and, if so, their frequency; whether the disorder is manifested by a progressive loss of weight and strength, or other complications; whether the appellant has been hospitalized due to his diabetes mellitus, and if so how frequently; and finally the frequency of any visits to his diabetic care provider. A complete and fully reasoned rationale must be provided for any opinion offered. 3. The Veteran is notified that it is his responsibility to report for VA examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must review the examination report to ensure that it complies with this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures. 5. After taking any further development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ DEREK R. BROWN 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).