Citation Nr: 1733596 Decision Date: 08/17/17 Archive Date: 08/23/17 DOCKET NO. 13-28 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating in excess of 10 percent for diabetes mellitus (DM), type II with left eye non-proliferative diabetic retinopathy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the April 2012 rating decision, the RO denied an increased rating for the Veteran's DM with left eye non-proliferative diabetic retinopathy. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Since the Agency of Original Jurisdiction (AOJ) issued the September 2013 statement of the case, the Veteran has submitted additional evidence, along with waivers of consideration of this evidence by the AOJ. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that a new examination is warranted for the Veteran's claim. The Veteran's last VA examination for his service-connected DM with left eye non-proliferative diabetic retinopathy was over three years ago. See April 2014 VA examination. Since his last VA examination, the Veteran and his representative have suggested that his symptoms associated with DM have worsened. See February 2017 Appellant brief. Where a Veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity of his service-connected DM with left eye non-proliferative diabetic retinopathy; since the claim is being remanded, updated treatment records should be obtained as well. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include treatment records from the Beaufort Outpatient Clinic and Charleston VA Medical Center (VAMC) dated from May 2012 to present. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, arrange for the Veteran to undergo a VA examination, by an appropriate healthcare professional, to evaluate his service-connected DM with left eye non-proliferative diabetic retinopathy. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. All tests and studies deemed appropriate should be performed, and all clinical findings reported in detail. b. In particular, the examiner must indicate whether and to what extent the Veteran requires treatment with restricted diet, insulin, oral hypoglycemic agents, frequent visits to a medical care provider, or hospitalization, including specifying whether there has been regulation of activities. "Regulation of activities" is defined by 38 C.F.R. § 4.119, Diagnostic Code 7913, as the "avoidance of strenuous occupational and recreational activities." c. The examiner is to comment on the Veteran's VA treatment notes showing that he had infrequent hypoglycemia that occurs with physical activity and that he experienced occasional mid-day hypoglycemia, especially with exercise. See March 2010 and January 2012 VA treatment records. The Veteran has also claimed that these hypoglycemic periods have increased in frequency. See May 2012 notice of disagreement (NOD). d. The examiner also must indicate whether the Veteran has experienced episodes of ketoacidosis, hypoglycemic reactions, and/or weight loss. e. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. The Veteran 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). _________________________________________________ KRISTI L. GUNN 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) (2016).