Citation Nr: 1414655 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 09-28 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007. 2. Entitlement to a staged initial rating greater than 20 percent for diabetes mellitus, type II, on and after July 12, 2007. 3. Entitlement to service connection for peripheral neuropathy, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran's claims file is in the jurisdiction of the VA RO in New York, New York. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2014. A transcript of that hearing is associated with the claims file. The Board notes that in a statement dated in August 2012, the Veteran attempted to raise an issue of whether there was clear and unmistakable error (CUE) in the June 2006 rating decision as to the denial of service connection for peripheral neuropathy, and as to a July 2009 rating decision as to the initial ratings assigned for separate disabilities associated with service-connected diabetes mellitus. However, as the June 2006 rating decision is on appeal as to the issue of service connection for peripheral neuropathy, that determination is not final. A claim of CUE may only be brought as to a final determination. As to the claim of CUE as to the initial ratings assigned in the July 2009 rating decision, this not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to a staged initial rating in excess of 20 percent for diabetes mellitus, type II, and entitlement to service connection for peripheral neuropathy, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT On January 7, 2014, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial rating greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial evaluation greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. By a June 2006 rating decision, the RO granted service connection for diabetes mellitus, type II, and awarded a 10 percent initial evaluation, effective September 30, 2005. The Veteran filed a notice of disagreement in November 2006, alleging that he was entitled to an initial rating greater than 10 percent for his diabetes. In a May 2009 statement of the case determination, a staged initial rating of 20 percent was assigned for the Veteran's diabetes mellitus, type II, effective July 12, 2007. In June 2009, the Veteran perfected his appeal. However, during his January 2014 hearing before the Board, the Veteran withdrew his appeal regarding entitlement to an initial rating greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007. He confirmed that he wished to proceed only with the issue of entitlement to a staged initial rating greater than 20 percent for diabetes mellitus, type II, on and after July 12, 2007. With no allegation of error of fact or law remaining before the Board, the Board does not have jurisdiction to review the issue of entitlement to an initial rating greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007, and it is dismissed. ORDER The appeal as to the issue of entitlement to an initial rating greater than 10 percent for diabetes mellitus, type II, prior to July 12, 2007, is dismissed. REMAND The RO last considered the Veteran's appeal in a November 2010 supplemental statement of the case. Since that time, additional evidence, without a waiver of RO consideration, has been received which is relevant to the issues addressed herein. Specifically, this evidence includes a private medical treatment record dated in December 2010, which pertains to the Veteran's diabetes mellitus, type II, and his peripheral neuropathy. Accordingly, the Board must return the case to the RO for consideration of the additional evidence and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013). Additionally, during his January 2014 hearing before the Board, the Veteran identified additional private medical treatment records which may be relevant to his claims. Specifically, the Veteran reported that he sought treatment from Dr. Bremmer for diabetes mellitus and peripheral neuropathy prior to establishing care with VA. As these records may help the Veteran to establish his claims, they should be obtained and considered by the RO. Accordingly, the RO should obtain all private treatment records from Dr. Bremmer. Accordingly, the case is REMANDED for the following action: 1. After obtaining all required authorizations, obtain the Veteran's private treatment records from Dr. Bremmer. All actions to obtain these records should be documented in the claims file. The RO must make two attempts to obtain the private treatment records, or make a finding that further requests would be futile. If no records are obtained, the RO must (1) notify the Veteran of the records that were sought, (2) inform him of the efforts to obtain them, and (3) inform him that the claim will be rated based on the evidence of record but that the claim may be readjudicated if the records are later submitted. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated with consideration of all of the evidence in the claims file, to include evidence received since issuance of the most recent supplemental statement of the case in November 2010. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2013). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs