Citation Nr: 1702347 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 10-13 790A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for service-connected diabetes mellitus, currently rated 20 percent disabling. 2. Entitlement to service connection for diabetic nephropathy, to include whether a separate compensable rating is warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1969. This matter came before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing at the RO before the undersigned in August 2013. A transcript of the hearing is of record. The Board in January 2014 found the issue of entitlement to TDIU to have been raised based on contentions of record and to be part of the appealed rating claim, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded both issues for development, following which they have returned to the Board for review. The Veteran initially sought entitlement to increased rating specifically for diabetes mellitus. Diabetic nephropathy has been noted in VA treatment records and on a VA examination report as a complication of the Veteran's diabetes. Therefore, the Board is accepting jurisdiction over this issue for purposes of granting service connection as part of his increased rating claim for diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (in general, compensable complications are rated separately; noncompensable complications are rated as part of diabetic process under Code 7913). The issues of an increased rating for diabetes, entitlement to a separate compensable rating for diabetic nephropathy, and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT VA treatment records dated in 2014 and the July 2014 VA examination diagnosed diabetic nephropathy as a complication of the Veteran's diabetes. CONCLUSION OF LAW The criteria for establishing service connection for diabetic nephropathy have been met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.310, 4.119, Diagnostic Code 7913 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran initially sought entitlement to an increased rating specifically for diabetes mellitus. The rating criteria for diabetes direct that compensable complications of diabetes are separately rated unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Upon review of the record, the Board notes that the July 2014 VA examiner noted the Veteran suffered from diabetic nephropathy as a complication of his diabetes. VA treatment records dating at least as early as January 2014 note the Veteran has been diagnosed with microalbuminuric diabetic nephropathy. Accordingly, service connection for diabetic nephropathy is warranted. Id.; see also 38 C.F.R. § 3.310. . ORDER Service connection for diabetic nephropathy is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND Whether a compensable evaluation is warranted for diabetic nephropathy is a question for the AOJ to address in the first instance. As noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913, such matter is intertwined with the claim for an increased rating for diabetes, and the diabetes claim must be remanded. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). Reevaluation by the AOJ would in any case be required since VA treatment records have been associated with the claims file subsequent to the most recent supplemental statement of the case (SSOC) in October 2015, which included treatment for diabetes mellitus and symptoms thereof. 38 C.F.R. §§ 19.31, 19.37, 20.1304(c) (2016). Additionally, the claim for entitlement to a TDIU is intertwined with the increased rating claim and the evaluation to be assigned to the diabetic nephropathy. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); 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. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his diabetes and nephropathy. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dating since November 2016. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA renal examination to address the nature and severity of his diabetic nephropathy. The electronic claims file must be made available to and reviewed by the examiner in conjunction with the examination. All appropriate tests or studies should be conducted, and the results should be reported in detail. All symptomatology associated with the diabetic nephropathy should be reported. 3. After undertaking the above development and any additional development deemed necessary, the case should be readjudicated. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case, followed by an appropriate period of time in which to respond. Then, return the appeal to the Board, if in order. 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 Department of Veterans Affairs