Citation Nr: 1339376 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-10 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In this rating decision, the RO awarded service connection for diabetes mellitus and assigned a 20 percent rating, effective October 2008. 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 The Board finds that further development is necessary regarding the Veteran's increased rating claim for his service-connected diabetes mellitus and his claim for a TDIU. The Veteran was most recently afforded a VA diabetes mellitus examination in June 2012. The Veteran's representative contends that this examination was inadequate inasmuch as the examiner ignored important evidence of record that would support a higher rating. Namely, she did not consider the impact that his documented hypoglycemic reactions have on whether he is required to regulate his activities. Additionally, the representative argued that the examiner did not indicate whether she reviewed the claims file prior to her conclusion that the Veteran is not required to regulate his activities due to diabetes mellitus. The representative also argued that the examiner failed to provide a rationale for her opinion. The Board finds that in light of the representative's argument and review of the examination report, that the Veteran should be afforded a new VA examination to determine the severity of his service-connected diabetes mellitus and any associated complications. Finally, the Board liberally construes the November 2013 appellate brief to be a notice of disagreement to the August 2013 rating decision denying a TDIU. Because the notice of disagreement placed the issue in appellate status, the TDIU matter must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. A Statement of the Case on the issue of entitlement to a TDIU should be issued to the Veteran and his representative. The Veteran should be informed of the requirements to perfect an appeal with respect to the new issue. If the Veteran perfects an appeal with respect to this issue, the RO/AMC should ensure that all indicated development is completed before the case is returned to the Board. 2. The RO/AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the Veteran's diabetes mellitus and any associated complications during the period of this claim. 3. Then, the RO/AMC should arrange for the Veteran to be afforded a VA examination, by someone other than the June 2012 examiner, if possible, to determine the current severity of his service-connected diabetes mellitus and any associated complications. The claims file, including any evidence contained in his electronic files, must be made available to the examiner, and the examiner should indicate in the report that the file was reviewed. The examiner is asked to address whether regulation of activities is required and he/she should specifically discuss the Veteran's contentions that he is prone to hypoglycemic reactions. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO/AMC should ensure that the examiner provides all information required for rating purposes. 4. The RO/AMC should also undertake any other development it determines to be warranted. 5. Then, the RO/AMC should adjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to him and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 case 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. 2013). _________________________________________________ MICHAEL LANE 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) (2013).