Citation Nr: 21063978 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 09-25 115 DATE: October 18, 2021 REMANDED Entitlement to a rating in excess of 60 percent for diabetic nephropathy with hypertension (HTN) is remanded. Entitlement to a rating in excess for 40 percent for diabetes mellitus type 2 (DM2) with erectile dysfunction (ED) is remanded. Entitlement to separate compensable rating for HTN is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to August 1970, to include service in the Republic of Vietnam. Regrettably, a remand is necessary in this case to ensure that due process is followed and that 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; 38 C.F.R. § 3.159. Discussion The Veteran contends that the current ratings do not reflect the severity of the respective service-connected disabilities. The Veteran also contends that HTN warrants a separate compensable rating. In lay correspondence, the Veteran has indicated that these disabilities have worsened in severity; specifically, the Veteran reported that he has experienced several strokes but did mention whether they were caused by worsening diabetes, nephropathy, or hypertension or a combination of these disabilities. VA outpatient records do show treatment for strokes in 2016 but it is not clear that the Veteran is reporting more recent episodes. Moreover, the Veteran sent documents to his United States Senator, in which the Veteran included lay accounts; a spousal statement; and medical records. Also, the Veteran has indicated that he has additional records which show the severity of his disabilities. On the other hand, the Veteran has expressed frustration in the delay of adjudication of these claims and requested a prompt decision. Upon review of the evidence of record, the Veteran last reported for VA kidney, HTN, DM2 examinations in September 2019over two years ago. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). The evidence, as articulated above, suggests worsening that that triggers the need for VA examinations to assess the current severity of service-connected diabetic nephropathy with hypertension and DM2. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran must be provided the opportunity to waive additional examinations if he wishes a decision on the existing record. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the disabilities noted above. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for VA kidney, HTN, and DM2 with an appropriate clinician. The clinician must review the claims file and indicate such review within the body of the opinion. The clinician should perform all necessary testing and evaluative protocols to determine the current severity of the Veteran's respective disabilities. 4. Upon evaluation of the HTN examination results, the RO must determine whether the Veteran warrants a separable compensable rating for HTN, according to the criteria laid out in 38 C.F.R. § 4.104, Diagnostic Code 7101. The clinician must provide complete, clearly-stated rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, Counsel 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.