Citation Nr: 21029742 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-25 396 DATE: May 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) from a December 2014 rating decision that granted service connection for diabetes and assessed an initial disability rating of 20 percent, effective April 9, 2013. In February 2019, the Board remanded this matter for further development. The Board notes that additional VA treatment records were added to the Veteran's claims file after the May 2020 supplemental statement of the case. Although the Veteran has not waived initial agency of jurisdiction (AOJ) review of this evidence, the Board finds that there is no prejudice because remand is required for other reasons and the AOJ can consider this additional evidence on remand. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. The Board finds that there was not substantial compliance with the February 2019 directive for the VA examiner to specifically address whether the Veteran is required to regulate his activities, to include consideration of the available treatment records. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the December 2019 VA examiner stated that the Veteran's diabetes did not require regulation of activities, but provided no rationale for this opinion. The Board notes that the Veteran's VA treatment records includes potential medical evidence of regulation of activities, to include a July 2015 record indicating lower blood glucose levels before supper likely due to exercise after lunch and before supper, a July 2016 record indicating hypoglycemia after breakfast due to activity and delay in meals, and a January 2017 record indicating lower after breakfast blood glucose levels likely due to regularly exercising. On remand, the examiner should consider these treatment records in addressing whether the Veteran's diabetes requires regulation of activities. The Board has considered the Veteran's and his representative's assertions that the Veteran's diabetes requires regulation of activities. While the Veteran asserted in written pleadings, to include the April 2015 Notice of Disagreement and the July 2015 VA Form 9, that he has restricted activities due to low sugar readings upon activity, the Board notes that these lay statements are insufficient because medical evidence is required to substantiate regulation of activities. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Similarly, while the Veteran's representative asserted in the April 2021 informal hearing presentation that a January 2020 VA treatment record appeared to restrict the Veteran's activities to walking, the Board notes that this record indicated that the Veteran reduced walking in the afternoon due to cold weather and getting darker sooner. The Board notes that the Veteran can request that his VA physicians provide a medical opinion on whether his diabetes requires regulation of activities (i.e., avoidance of strenuous occupational and recreational activities) as part of medical management of diabetes to avoid hypoglycemic episodes. On remand, the examiner should also consider whether the Veteran has diabetic neuropathy. While the December 2019 VA examiner stated that there was no diabetic neuropathy, the Board notes that an October 2016 VA treatment record indicated that the Veteran may be having the start of some diabetic neuropathy with off and on tingling and a May 2020 VA treatment record indicated that the Veteran reported occasional numbness and tingling in the feet that sounded to be likely a diabetic neuropathy. The Veteran should also be provided with a new eye examination because evidence since the January 2020 VA examination shows a potential complication from the Veteran's diabetes. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). While the January 2020 VA examiner stated that there was no sign of diabetic retinopathy, a March 2020 VA ophthalmology examination identified a diagnosis of diabetes with mild non-proliferative retinopathy in both eyes. This examination also showed bilateral peripheral retinal hemorrhages. While a September 2018 VA ophthalmology examination showed isolated left peripheral hemorrhage that was likely secondary to cataract surgery versus idiopathic, a January 2019 VA treatment record noted negative retinopathy, but also noted the left peripheral hemorrhage. On remand, the examiner should consider the March 2020 diagnosis in addressing whether the Veteran has diabetic retinopathy. The examiner should also address whether the March 2020 finding of bilateral peripheral retinal hemorrhages is related to the Veteran's diabetes and, if so, whether this finding is related to the September 2018 finding of isolated left peripheral hemorrhage. On remand, the AOJ should also update the Veteran's claims file. The AOJ should obtain the Veteran's VA treatment records since May 2020. The AOJ should also search VISTA or other relevant VA treatment record systems for treatment records from private physician Dr. M.T. While the AOJ made two attempts to obtain these records from the private facility, the Board notes that a March 1, 2014, VA treatment record indicated that treatment records from Dr. T. were received and were intended to be sent for scanning. The AOJ should associate any treatment records found with the Veteran's claims file or, if no records are found, document all search efforts in the claims file. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from May 2020 to the present. 2. Search VISTA or other relevant VA treatment record systems for the private treatment records from Dr. M.T. that were identified in a March 1, 2014, VA treatment record and were intended to be sent for scanning. Associate any treatment records found with the Veteran's claims file or, if no records are found, document all search efforts in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to address whether the Veteran is required to regulate his activities and, if so, to address the nature of the regulation of activities. The examiner should consider the treatment records, to include a July 2015 VA treatment record indicating lower blood glucose levels before supper likely due to exercise after lunch and before supper, a July 2016 VA treatment record indicating hypoglycemia after breakfast due to activity and delay in meals, and a January 2017 VA treatment record indicating lower after breakfast blood glucose levels likely due to regularly exercising. The examiner is also asked to address whether the Veteran has diabetic neuropathy. The examiner should consider the treatment records, to include an October 2016 VA treatment record indicating the Veteran may be having the start of some diabetic neuropathy with off and on tingling and a May 2020 VA treatment record indicating the Veteran reported occasional numbness and tingling in the feet that sounded to be likely a diabetic neuropathy. 4. Schedule the Veteran for an eye examination by an appropriate clinician to determine whether the Veteran has diabetic retinopathy. The examiner should consider the March 2020 diagnosis of diabetes with mild non-proliferative retinopathy in both eyes. (Continued on the next page.) The examiner is asked to address whether the March 2020 finding of bilateral peripheral retinal hemorrhages is related to the Veteran's diabetes and, if so, whether this finding is related to the September 2018 finding of isolated left peripheral hemorrhage. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, Associate 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.