Citation Nr: 20051204 Decision Date: 08/03/20 Archive Date: 08/03/20 DOCKET NO. 12-11 539A DATE: August 3, 2020 REMANDED An initial rating higher than 20 percent for diabetes mellitus is remanded. A separate rating higher than 10 percent for hypertension related to diabetes mellitus, type II is remanded. A separate compensable rating for visual impairment related to diabetes mellitus, type II, to include diabetic retinopathy, cataracts, and/or macular edema is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to September 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetes, type II, associated with herbicide exposure. The Veteran’s notice of disagreement (written on a VA Form 9) was received in December 2010. The RO issued a May 2012 statement of case. Later that month, the Veteran submitted a statement entitled “NOD,” which was accepted as a substance appeal, thereby perfecting the Veteran’s appeal. In June 2014, the Board remanded the Veteran’s claim, now characterized as an initial disability rating higher than 20 percent for diabetes mellitus with hypertension, macular edema, cataracts, and erectile dysfunction, for further development. The Board adjudicated this appeal in an October 2017 decision, which denied the Veteran’s increased rating claim for diabetes mellitus and denied claims for separate compensable ratings for associated hypertension, erectile dysfunction, and visual impairment. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2018 the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the October 2017 Board decision insofar as it which denied the Veteran’s increased rating claim for diabetes mellitus and denied claims for separate compensable ratings for associated hypertension and visual impairment and remanded the claim to the Board for action consistent with the terms of the JMR. The October 2017 Board decision’s denial of a separate compensable rating for erectile dysfunction was not disturbed. In April 2019, the Board remanded these issues for further development, including a search of the absent VA and private treatment records noted in the JMR. In a September 2019 letter, the Board asked the Veteran to complete and return VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) for each of the private treatment providers noted in the JMR in order to allow VA to obtain those records. To date, the Board has not received a completed VA Form 21-4142 for either. In an October 2019 report of general information, the Nashville Appeals Team certified that there were no VAMC Memphis treatment records for the Veteran prior to the November 3, 2009, Agent Orange examination. The Veteran was informed of this in an October 2019 letter. This remand also instructed that the records scanned into the VistA system referenced in the March 26, 2013, and October 9, 2013 VA treatment records be obtained and separately added to the claims file. The record still does not contain these records and the record does not reflect any attempt to add them. In a May 2020 rating decision, the Veteran was awarded a separate 10 percent rating for hypertension effective October 17, 2010. Although the RO stated that this was a full grant of the benefits sought, the Veteran’s hypertension has been claimed as part of his overall disability picture for diabetes mellitus type II for which he is still seeking an increased rating. Insofar as higher ratings are available for hypertension and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran’s claims for an increased rating for diabetes mellitus and for a separate compensable rating for associated visual impairment was denied in a May 2020 supplemental statement of the case. 1. A rating higher than 20 percent for diabetes mellitus is remanded. 2. A separate rating higher than 10 percent for hypertension related to diabetes mellitus, type II is remanded. 3. A separate compensable rating for visual impairment related to diabetes mellitus, type II, to include diabetic retinopathy, cataracts, and/or macular edema is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding these issues. As noted in the introduction, the April 2019 Board remand instructed the agency of original jurisdiction (AOJ) to obtain additional VA and private treatment records identified in the September 2018 JMR. While the AOJ did attempt to obtain most of these records, it does not appear as though any attempt to associated the records scanned into the VistA system referenced in the March 26, 2013, and October 9, 2013 VA treatment records with the claims file. The May 2020 supplemental statement of the case (SSOC) concludes that a search of the scanned documents revealed no results in Health Information Systems and Technology Architecture (VistA) system. The claims file, however, does not contain any evidence of this search and the list of evidence considered by that SSOC likewise does not reference any such search. There was a separate search for VAMC Memphis treatment records for the Veteran prior to November 3, 2009, that yielded negative results as reported in the October 2019 VA Form 27-0820, but this form does not mention a search for the scanned records. The Board notes that while VA medical personnel have access to an interactive record, including scanned attachments, the claims file is static. Until they are separately uploaded, these attachments are not part of the official record and cannot be accessed by the Board or the Veteran. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The most recent VA treatment records continue to include specific reference scanned documents from March 26, 2013, and October 9, 2013. Therefore, if they are not available, further clarification is necessary. If VistA is not the proper repository for scanned records such as these, VA is asked to instead search the appropriate databases. The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain the scanned records referenced in the March 26, 2013, and October 9, 2013 VA treatment records and associate them with the Veteran’s claims file. Remember that these records and other such attachments to the VA treatment record are not part of the official record and cannot be accessed by the Board or the Veteran until they are separately uploaded to the file. 2. Finally, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and his attorney with a supplemental statement of the case and allow them an opportunity to respond. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.