Citation Nr: 1513726 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 12-09 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for service-connected diabetes mellitus with diabetic retinopathy, currently rated 20 percent disabling. 2. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from April 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a decision review officer (DRO) at the RO in September 2012. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2013. In September 2013, the Veteran submitted additional evidence, and waived RO consideration of that evidence. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND While delay is regrettable, the Board finds that additional action is required. The August 2011 rating decision denied an increased rating for diabetes mellitus with diabetic retinopathy and a TDIU. The Veteran filed a letter disagreeing with the "decision denying an increase in my service connected diabetes" and a TDIU. The April 2012 statement of the case (SOC) addressed both of those issues, and the Veteran submitted a VA Form 9 simply checking off the box that he wanted to appeal all issues listed in the SOC. However, beginning with the May 2012 supplemental statement of the case (SSOC) the diabetes issue was changed to "Evaluation of diabetic retinopathy, which is currently noncompensable and included in the evaluation of diabetes mellitus, type II." During the September 2012 DRO hearing, the DRO identified that issue as entitlement to service connection for diabetic retinopathy. In the April 2013 SSOC, the DRO listed the issue as evaluation of diabetic retinopathy. Neither SSOC addressed additional evidence pertinent to the issue of an increased rating for diabetes, which was actually the issue appealed and perfected. The Board can find no correspondence in the record wherein the Veteran withdrew his perfected appeal for an increased rating for diabetes and only wanted to pursue a separate compensable rating for diabetic retinopathy. The Board acknowledges that the Veteran's representative noted during the DRO hearing that he believed the 20 percent rating for diabetes was "clearly on track" but at no time was it indicated that the appeal for an increased rating for diabetes was withdrawn. As the AOJ impermissibly limited the Veteran's appeal and has not addressed any of the relevant evidence received subsequent to the April 2012 SOC as it pertains to an increased evaluation for diabetes mellitus, remand is required for the AOJ to readjudicate the appeal for an increased rating for diabetes mellitus with diabetic retinopathy and issue an appropriate SSOC. Moreover, as the DRO did not adequately identify the issue during the hearing, the Veteran should be asked whether he wishes to have another DRO hearing to address the appeal for an increased rating for diabetes. Concerning the claim for a TDIU, at his August 2013 Board hearing, the Veteran reiterated that he lost his commercial driver's license (CDL) the date he was prescribed insulin in March 2011. He now only works one or two days a week as a driver in jobs that do not require a CDL. In addition, the March 2013 VA examiner noted that the Veteran is successfully working as a part time driver in a position in which a CDL is not required. As the Veteran essentially contends that he is limited to marginal employment, additional employment information should be requested. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him whether he wants a DRO hearing to address his appeal for an increased rating for diabetes. If he responds in the affirmative, such hearing should be scheduled. 2. Obtain updated VA treatment records dating since April 2013. 3. Ask the Veteran to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment and income information since 2011. Send a VA Form 21-4192 to any employers identified. 4. After the above has been completed to the extent possible, the record should again be reviewed and the claims readjudicated. The claim for an increased rating for diabetes mellitus with diabetic retinopathy must include consideration of the evidence received since the April 2012 SOC. If the claims remain denied, the appellant and representative should be issued an appropriate SSOC and appropriate time to respond should be provided 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). 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 2014). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).