Citation Nr: 1418090 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 10-42 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to an initial compensable disability rating for diabetic retinopathy. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for diabetes mellitus and diabetic retinopathy and assigned ratings of 20 percent and 0 percent, respectively. The Veteran originally requested a Travel Board hearing in his September 2010 substantive appeal; however, in a September 2011 statement, the Veteran withdrew his request for a Board hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Through his representative's March 2014 Appellant's Brief, the Veteran contends that his diabetes mellitus and diabetic retinopathy have worsened since the most recent VA examination, dated August 2008. As such, the evidence indicates that the disabilities have increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his diabetes mellitus and diabetic retinopathy. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, a Disability Benefits Questionnaire (DBQ) examination report dated December 13, 2012 is cited in a June 2013 rating decision regarding the Veteran's service-connected diabetic peripheral neuropathy, and it is unclear whether that DBQ report contains evidence that is pertinent to the claims on appeal because it is not of record. On remand, the December 2012 DBQ report should be associated with either the physical or electronic claims file. Further, remand is required because the August 2008 VA examination report includes a finding that the Veteran's nephropathy/renal insufficiency is at least as likely as not secondary to his diabetes, and a June 2013 VA treatment record (located in Virtual VA CAPRI records dated June 25, 2013, at p. 12) also includes a VA clinician's opinion that the Veteran's nephropathy is due to his diabetes mellitus. As such, the RO should consider this complication of diabetes on remand. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 (Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation.) The Court of Appeals for Veterans Claims has held that a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran reported in September 2011 that he is unemployable due to his service-connected disabilities, which include diabetes mellitus and complications thereof. As such, that issue must be adjudicated on appeal. As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical records that he has received for his diabetes mellitus and diabetic retinopathy, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his diabetes mellitus and diabetic retinopathy that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. The December 2012 DBQ report should also be associated with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature and severity of his diabetes mellitus and diabetic retinopathy and their impact on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any outstanding treatment records regarding the Veteran's diabetes mellitus and diabetic retinopathy, provide him with an appropriate VA examination(s) to determine the severity of those disabilities. The claims file must be made available to and be reviewed by the examiner(s) and all necessary tests should be conducted. The examiner(s) should report all pertinent findings. In addition to objective test results, the examiner should fully describe the functional effects caused by the disabilities, including any diabetic nephropathy/renal insufficiency. The examiner(s) must also discuss the impact that the Veteran's diabetes mellitus and associated service-connected disabilities have on his ability to secure and maintain substantially gainful employment. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond 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 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). _________________________________________________ STEVEN D. REISS 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).