Citation Nr: 1808388	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-26 260	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased disability rating for diabetes mellitus, type II, currently rated as 20 percent disabling.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from October 1966 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
 
In December 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.
 
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a higher disability rating in excess of 20 percent for diabetes mellitus, type II.  The Veteran was last provided a VA examination relating to his diabetes mellitus, type II in May 2012, over six years ago.  At the December 2016 hearing, the Veteran testified that his condition has increased in severity.  Specifically, the Veteran testified that he now takes insulin and is on a restricted diet, which would entitle him to a higher disability rating.  See December 2016 Board hearing transcript.  In light of the Veteran's assertions, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination).

Additionally, at the December 2016 Board hearing the Veteran testified that he receives treatment for his diabetes mellitus, type II at the Longveiw CBOC.  The most recent VA treatment records in the Veteran's claims file are from February 2017.  VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession.  See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).  On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record.  

Accordingly, the case is REMANDED for the following action:

1.   Obtain all outstanding treatment records relevant to the matters being remanded, to include from the VA Longveiw CBOC, to include from February 2017.

2.  After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected diabetes mellitus, type II.  The record and a copy of this remand must be made available to and reviewed by the examiner.  The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request.  The examiner should report all manifestations and functional impairment related to the Veteran's service-connected diabetes mellitus, type II.  

The examiner should indicate that the record was reviewed.  The examiner should address whether the Veteran currently takes insulin for his service-connected diabetes mellitus, type II and whether he is on a restricted diet and regulation of activities.  A complete rationale should be provided for the opinion given.  

3.  After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether an increased rating may be granted for the Veteran's service-connected diabetes mellitus, type II.  If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  The appropriate period should be allowed for response before the appeal is returned to the Board.


The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).




_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).