Citation Nr: 21041507
Decision Date: 07/09/21	Archive Date: 07/09/21

DOCKET NO. 18-12 931
DATE: July 9, 2021

REMANDED

Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus for the period prior to April 1, 2016 is remanded.

Entitlement to an initial disability rating in excess of 60 percent for diabetes mellitus for the period from April 1, 2016 through September 28, 2016 is remanded.

REASONS FOR REMAND

The Veteran had a period of honorable active duty service from May 1996 to September 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for diabetes mellitus and assigned disability ratings.  The Veteran appealed the initial disability rating(s) assigned.  

This appeal being from the initial ratings assigned to disabilities upon awarding service connection, the entire body of evidence is for equal consideration.  Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Fenderson v. West, 12 Vet. App. 119 (1999).  Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e) (2003), which generally requires notice and a delay in implementation of a proposed rating reduction.  Fenderson, 12 Vet. App. at 126.  The disability ratings and periods of time indicated above remain on appeal.  

The Board denied these claims in March 2020, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In February 2021, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the March 2020 decision and remand the matters to the Board.  

The JMR stated that the records from VA Southern Nevada HCS incomplete as an August 2016 treatment note provided by a nurse practitioner indicated that the Veteran's diabetes mellitus was "managed by Dr. Yap of endocrine," yet no records showing treatment by Dr. Yap were of record. 

Records generated by VA are constructively included within the record.  If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The matters are REMANDED for the following action:

Ask the Veteran to identify all outstanding treatment records relevant to treatment for diabetes mellitus.  All identified VA records should be added to the claims file.  All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran.  Also obtain complete copies of the Veteran's VA treatment records from VA Southern Nevada HCS including endocrine treatment records from Dr. Yap.  If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Havelka, 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.