Citation Nr: 21001152 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-02 230A DATE: January 7, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2019). VA’s duty to assist includes making reasonable efforts to obtain private (non-VA) medical records. 38 C.F.R. § 3.159(c)(1). Such reasonable efforts generally include an initial request and, if the records are not received, at least one follow-up request, unless a response indicates that the records sought do not exist or that a follow-up request for the records would be futile. Id. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (noting that the duty to assist is triggered when record evidence indicates the existence of potentially relevant private medical records); see also Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate where the record is inadequate). Here, the Veteran asserted in his September 2018 Notice of Disagreement (NOD) that records from his private physician were not reviewed by the RO in assessing the severity of his diabetes mellitus with erectile dysfunction. See NOD received September 24, 2018. Review of the record reveals that the Veteran previously provided consent forms in 2007 and 2012 to allow VA to obtain treatment records from the private medical practice he identified in the NOD. The record does not reflect that the RO requested updated treatment records from this practice or notified the Veteran that a new consent form was needed to request records. The Veteran submitted a new consent form in December 2020 after the RO’s issuance of the Statement of the Case and certification of the appeal to the Board. While the RO received private ophthalmology records in December 2020, no records were obtained to date from the private practice relevant to the Veteran’s diabetes mellitus, type II, with erectile dysfunction. Additionally, there appears to be a gap of approximately eight months in VA treatment records, from January 2019 to September 2019. Accordingly, on remand, the RO must attempt to obtain outstanding private and VA records relevant to the Veteran’s diabetes mellitus, type II, with erectile dysfunction. 38 C.F.R. § 3.159(c)(1); see Ivey, supra. The Board emphasizes that the Veteran maintains the ultimate burden to demonstrate that an increased rating is warranted. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Moreover, VA’s duty to assist is a two-way-street; if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of treatment from private health care providers pertinent to his diabetes mellitus, type II, with erectile dysfunction, to include records from the provider identified at 9A of the VA consent form 21-4142a received December 10, 2020 (see VBMS document type “VA 21-4142 Authorization for Release of Information,” receipt date 12/10/2020). If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. After completing any additional development deemed necessary, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.