Citation Nr: 1340446	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  10-17 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a higher initial rating for service-connected degenerative disc disease with back strain, evaluated as 10 percent disabling from April 19, 2007 to April 15, 2013, and 40 percent disabling from April 15, 2013.  

2.  Entitlement to an increased rating for service-connected diabetes mellitus, type II, evaluated as 20 percent disabling.  

3.  Entitlement to a compensable rating for service-connected bilateral hearing loss.  

4.  Entitlement to an increased rating for service-connected peripheral neuropathy of the left lower extremity, evaluated as noncompensably disabling prior to July 27, 2012, and 10 percent disabling from July 27, 2012.  

5.  Entitlement to an increased rating for service-connected peripheral neuropathy of the right lower extremity, evaluated as noncompensably disabling prior to July 27, 2012, and 10 percent disabling from July 27, 2012.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Keyvan, Counsel


INTRODUCTION

The Veteran had active service from August 1967 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

During the current appeal, and specifically in July 2011, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2013).  A transcript of the testimony has been associated with the Veteran's claims file.  

This matter was previously before the Board in May 2012 at which time it was remanded for additional development.  As will be discussed further, with respect to the issue decided herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

During the pendency of the Veteran's appeal, and specifically in the December 2012 rating action, the RO increased the disability evaluations for the service-connected peripheral neuropathy of the right and left lower extremities to 10 percent, effective from July 27, 2012.  In the May 2013 rating action, the RO increased the disability evaluation for the service-connected low back disability to 40 percent, effective from April 15, 2013.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found).  The Veteran has not expressed satisfaction with these ratings.  Accordingly, these issues remain in appellate status for the entire period.  AB v. Brown, 6 Vet. App. 35 (in which the United States Court of Appeals for Veterans Claims (Court) stipulated that, unless a veteran expresses a desire for a specific rating for a service-connected disability, he/she is presumed to be seeking the maximum benefit permitted under the regulations).  

The issues of entitlement to a higher rating for diabetes mellitus, entitlement to a higher rating for the back disability and entitlement to a higher ratings for peripheral neuropathy of the right and left lower extremities will be addressed in the remand that follows the decision below.


FINDING OF FACT

Throughout the claim period, the Veteran has manifested no worse than Level II hearing acuity in his right ear and no worse than Level IV hearing acuity in his left ear.  



CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide.  

Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for benefits, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish the benefit sought and must inform him that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.  

Here, the Veteran filed his claim seeking a higher rating for his service-connected hearing loss in April 2007.  A letter dated in May 2007 satisfied the duty-to-notify provisions concerning an increased rating claim.  In particular, the correspondence informed the Veteran of the need for evidence of a worsening of his service-connected disorder.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  See also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  This letter also provided the Veteran with notice of how disability ratings and effective dates are determined.  Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied.  No further due process development of this claim is required.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records as well as the post-service VA medical records pertinent to the issues that will be decided herein are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims.  Pursuant to the May 2012 remand directives, the Veteran's outstanding VA treatment records generated at the VA Medical Center (VAMC) in St. Louis, Missouri, and dated from April 2011 to November 2012, were associated with the Virtual VA claims file and were reviewed by the RO and the Board in connection with the Veteran's claims.  In addition, the Veteran testified before the Board in July 2011.  Also, in accordance with the May 2012 remand instructions, the RO sought to obtain any of the Veteran's outstanding records from the Social Security Administration (SSA) in May 2012.  A response was received in June 2012 indicating that the Veteran's medical records had been destroyed.  As such, the SSA decision, and any records relied upon, were therefore unavailable.  Significantly, neither the Veteran, nor his representative, have otherwise alleged that there are any outstanding medical records probative of the claim for a higher rating for hearing loss that need to be obtained.  

The duty to assist also includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law.  VA examination with respect to the claim for hearing loss was obtained in July 2012.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case is adequate, as it was predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examination fully addressed the rating criteria that are relevant to rating the disability.  Thus, there is adequate medical evidence of record to make a determination as to the issue decided herein.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4).  

The Board acknowledges that it is unclear whether the Veteran's claims file was available for review during either VA examination.  However, the Board observes that review of the claims file is only required where necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions; necessity for pre-examination records review is to be determined according to the facts of each individual case.  See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064 (1996).  Here, resort to the Veteran's claims file was not necessary because the Veteran provided an accurate account of his medical history to the examiner, thus ensuring a fully informed examination.  Also, the claims file was not necessary for the examiner to provide findings as to the current severity of the hearing loss, which is the question at issue in this case.  The examiner was not asked to resolve conflicting medical opinions or diagnoses, such as might be required in a service connection claim.  Therefore, review of the file was not needed, and a remand for further examination with respect to the Veteran's claim for a higher rating would only delay the Veteran's appeal and would not likely result in a different outcome.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran).  

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations.  38 C.F.R. § 4.85 (2013); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss.  The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.  

Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIA, whichever results in the higher numeral.  That result will then be raised to the next higher Roman numeral.  

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2013).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  

In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his service-connected bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100.  

The evidence of record reflects that the Veteran was afforded a VA audiological examination in July 2007, the results of which were not provided in the report because the examiner found the Veteran's test results to be "inconsistent," "invalid" and "unreliable."  According to the examiner, the test results did not appear to reflect the Veteran's maximal effort and the Veteran was reinstructed and encouraged throughout testing with no improvement in his admitted responses.  

During his hearing, the Veteran described experiencing something akin to "hearing blockage" the previous winter, and stated that he sought treatment for this condition at his VA healthcare facility.  See T., p. 18.  Indeed, the May 2010 Audiology Consultation report revealed a diagnosis of moderate to moderately severe sensorineural hearing loss, and subsequent VA treatment records also dated in May 2010 reflect that hearing aid devices were ordered for the Veteran.  

The Veteran was afforded another VA audiological examination in July 2012.  The audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 50, 55, 55 and 50.  The left ear auditory thresholds in the same frequencies were recorded as 40, 50, 65 and 75.  Based on these results, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  The average pure tone threshold was 53 for the right ear and 58 for the left ear.  The examiner also noted that speech recognition ability was 84 percent in the right ear and 80 percent in the left ear.  When applying these results to Table VI, the results of the July 2012 examination correspond to Level II hearing for the right ear and Level IV hearing for the left ear.  See 38 C.F.R. § 4.85(b).  When those values are applied to Table VII, a noncompensable disability rating is assigned.  38 C.F.R. § 4.85.  

In making this determination, the Board has considered whether a compensable evaluation can be assigned under 38 C.F.R. § 4.86.  During his examination, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  

When asked whether the Veteran's hearing loss impacts the ordinary conditions of his daily life, including his ability to work, the VA examiner indicated that it did, and commented that the Veteran had trouble hearing and understanding conversation especially when in a noisy environment or group setting.  To the extent that the July 2012 examination report did not include a more detailed discussion of the effect of the Veteran's hearing loss disability on his occupational functioning and daily life, the Board finds no prejudice to the Veteran as a result of this omission.  Indeed, neither the Veteran nor his representative has alleged such, and the evidence does not show, and it has not been contended, that the Veteran's hearing loss disability has resulted in marked interference with employment or activities of daily life.  As discussed herein, the evidence of record reflects that the Veteran is currently retired.  There is nothing in the record to show that the Veteran experienced any difficulty carrying out his occupational duties as a result of his hearing loss.  Furthermore, the July 2012 VA examiner has addressed particular situations of difficulty that the Veteran may face with regard to his hearing loss.  Thus, any error on the part of the July 2012 VA examiner in failing to provide additional or more detailed information with respect to the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities does not affect the rating question.  In this regard, the Veteran claims that a higher rating for his bilateral hearing loss is warranted, not that the VA examination report was defective.  See Martinak, 21 Vet. App. at 455.  

Based on the results of VA examination, the Board concludes that a compensable rating for the Veteran's bilateral hearing loss is not warranted.  It is apparent that the assigned noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.  Although the Veteran has contended that his bilateral hearing loss is more severely disabling than the rating reflects, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is accomplished by a mechanical application of the rating criteria from which the Board cannot deviate.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Additionally, as the record contains no evidence showing that the Veteran was entitled to a higher rating at any point during the claim period, staged ratings are not appropriate.  See Hart, 21 Vet. App. 505.  Thus, the Board finds that the current noncompensable evaluation is appropriate and that there is no basis for awarding a higher evaluation for bilateral hearing loss at any time during the current claim.  38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100.  

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  As noted above, the very symptoms the Veteran has reported and have been found on examination are those contemplated by the rating criteria.  Therefore, referral for consideration of an extraschedular rating is not warranted.  

Lastly, the Court has held that a request for a total disability based on individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel of the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.  It has not been shown or suggested that gainful employment is precluded due to the Veteran's bilateral hearing loss.  While the Veteran reportedly retired in 2007, his decision to retire was voluntary and there is nothing in the record to indicate that he cannot obtain or maintain any form of employment as a result of the hearing loss.  The July 2012 VA audiological examination was clear for any evidence reflecting that the Veteran's bilateral hearing loss markedly impacted the Veteran's ability to obtain or maintain employment.  A fair reading of the overall evidence does not suggest that the Veteran's hearing loss precludes him from working.  As such, the Board does not find that a claim for a TDIU has been reasonably raised by the record with regard to his rating claim for hearing loss, and thus the Board finds it unnecessary to consider entitlement at this juncture.  


ORDER

Entitlement to a compensable evaluation for bilateral hearing loss is denied.  


REMAND

A remand is again required in this case as to the issue of entitlement to a higher rating for diabetes, as well as the issues of entitlement to a higher rating for degenerative disc disease with back strain and entitlement to higher ratings for peripheral neuropathy of the lower extremities.  

Subsequent to the issuance of the May 2013 Supplemental Statement of the Case (SSOC), the Veteran submitted what appears to be a hand-written letter dated on May 10, 2013, and written by his physician, H.H., M.D.  In that letter, Dr. H. noted that the Veteran was on "long acting" and "short acting" insulin as well as a low carbohydrate restricted diet for his diabetes.  Dr. H. also noted that the Veteran was restricted in his activities as a result of his diabetes due to the possibility that he could experience a hypoglycemic event from taking his insulin.  In light of this additional medical evidence indicating that the Veteran may now have to regulate his activities as a result of his diabetes mellitus, the Board finds that the Veteran should be afforded a VA examination to assess the severity of his diabetes.  

Also, in the September 2013 Informal Hearing Presentation, the Veteran, through his representative, noted that he had received regular treatment, in the form of physical therapy, for his back and neurological disorders at the St. Louis VAMC from May 2010 to April 2011.  According to the Veteran's representative, although medical records dated during this time frame had been obtained and submitted by the Veteran, these records were not complete as reflected by the missing page number sequences.  Indeed, a review of the record reflects that VA treatment records dated during this particular period are not in sequential order and somewhat incomplete in light of the fact that some of the pages appear to be missing.  A review of the VA treatment records located on the Virtual VA claims processing system is also absent a complete copy of these records.  According to the Veteran's representative, these missing pages may contain medical information pertinent to the Veteran's claims for a higher rating for his back disability and peripheral neuropathy of the lower extremities.  

The Board notes that VA is required by the VCAA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim, to include relevant records from both Federal and private sources.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  The Board further notes that 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 in the claims file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Therefore, as the identified VA medical records may have a bearing on the Veteran's claims, on remand the AOJ must attempt to obtain a complete copy of all medical records generated at the St. Louis VAMC dated from May 2010 to April 2011, as well as any VA medical records pertaining to recent treatment the Veteran has received for his diabetic symptoms, his back disorder, and his peripheral neuropathy of the lower extremities that are not already on file.  38 U.S.C.A. § 5103A(c).  

Accordingly, the case is REMANDED for the following action:

1.  Request from the St. Louis VAMC, a complete copy of all available medical records dating from May 2010 to April 2011, as well as records pertaining to treatment the Veteran has received for his diabetic symptoms, his back disorder, and his peripheral neuropathy of the lower extremities since November 2012.  Copies of such records which are available should be associated with the claims folder.  

Copies of all records should be sought from the care provider who signed the May 10, 2013, statement indicating there was a restriction in activities due to diabetes.  (It appears that this may be a VA physician; however, if a consent to release records is required, the Veteran should be asked to provide such a release.)

2.  Once these records have been obtained and associated with the claims file, the Veteran should be afforded a VA examination to ascertain the severity of his service-connected diabetes.  The claims folder, a copy of all medical records on Virtual VA, and a copy of this Remand must be made available to the examiner in conjunction with the examination.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner should comment on all pertinent findings on examination associated with the Veteran's service-connected diabetes.  In particular, the examiner should indicate whether his diabetes mellitus requires insulin, restricted diet, and regulation of activities.  In discussing the regulation of activities, the examiner should state whether it is medically indicated that the Veteran's occupational and recreational activities be restricted due to his diabetes mellitus.  (In this regard, the examiner should review the Veteran's history, including laboratory reports, and provide an opinion whether the nature of the Veteran's diabetes has been shown to be such that activities must be restricted or would ordinarily be restricted in cases as severe as his.)  If restriction is indicated the time when restriction was required should be identified.  The examiner should refer to the previous record where it was repeatedly noted that no restrictions were medically indicated, but the Veteran was instead encouraged to exercise.  In addition, the examiner should indicate whether there have been any episodes of ketoacidosis or hypoglycemic reactions in the past year.  If so, the examiner should note the number of any such episodes per year that required hospitalizations and the number of any such episodes per month that required visits to a diabetic care provider.  A complete rationale for all opinions expressed must be provided.  

3.  After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues remaining on appeal.  If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The Veteran 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 or by the Court 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).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs