Citation Nr: 22015201 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-40 294 DATE: March 16, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, is remanded. Propriety of the assignment of a separate rating for left lower extremity (LLE) diabetic peripheral neuropathy, evaluated as 10 percent disabling as of October 9, 2014, is remanded. Propriety of the assignment of a separate rating for right lower extremity (RLE) diabetic peripheral neuropathy, evaluated as 10 percent disabling as of October 9, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2013 by a Department of Veterans Affairs (VA) Regional Office. While on appeal, in an August 2017 rating decision, the Agency of Original Jurisdiction (AOJ) awarded separate 10 percent ratings for the Veteran's peripheral neuropathy of his bilateral lower extremities associated with his diabetes mellitus, type II, effective October 9, 2014. See 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, Note 1 (noting that noncompensable complications of diabetes are considered part of the diabetic process under DC 7913). Such issues are part and parcel of the increased rating claim for diabetes mellitus, type II. Id. In October 2021, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the record. The Board observes that, following the issuance of the June 2017 statement of the case, additional evidence was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, his claims are being remanded such that the AOJ will have an opportunity to consider it in the readjudication of his claims. Thus, no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. Finally, the Board notes that the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) with respect to an increased rating claim for his diabetic retinopathy in October 2021. The AOJ acknowledged such claim and initiated development, to include affording the Veteran a VA examination. Therefore, such claim is referred to the AOJ for continued appropriate action. 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Propriety of the assignment of a separate rating for LLE diabetic peripheral neuropathy, evaluated as 10 percent disabling as of October 9, 2014. 3. Propriety of the assignment of a separate rating for RLE diabetic peripheral neuropathy, evaluated as 10 percent disabling as of October 9, 2014. The Veteran contends that his diabetes mellitus, type II, is more severe than as reflected by the currently assigned disability rating. The record reflects that the Veteran was last examined for such disability in November 2013, at which time the examiner noted that the Veteran took insulin, and had a restricted diet, but there was no history of hypoglycemia or ketoacidosis, nor was he restricted in performing strenuous activities. However, an October 2021 letter from the Veteran's private physician, Dr. E.E., reveals that he advised the Veteran that he should continue to be active, but should be limited to light exercise. Further, at the October 2021 Board hearing, the Veteran testified that he takes insulin daily, requires regulation of his activities, and had a restricted diet. Consequently, based on the foregoing, the Board finds a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his diabetes mellitus, type II, and all associated complications. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, the Board finds that a remand is necessary to obtain outstanding private treatment records. In this regard, during the October 2021 Board hearing, the Veteran reported that he had been receiving private care for his diabetes; and later the same month, he submitted a VA Form 21-4142, authorizing VA to obtain treatment records on his behalf from: (1) Dr. J.T. from November 2011 to the present; and (2) Dr. T.S. from January 2012 to the present. Notification letters from VA dated in February 2022 informed the Veteran that copies of these records had been requested. This very recent and relevant development of the record remains pending and is pertinent to the issues on appeal; thus, a decision on the increased rating claim at this juncture would be premature. Further, although it appears that VA has made one attempt to obtain the aforementioned records, VA must make at least two attempts to obtain private treatment records identified by a veteran unless it makes a finding that a second attempt would be futile. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Thus, if VA's first attempt to obtain these records is not fruitful, VA must make another attempt to obtain the private treatment records identified by the Veteran. The matters are REMANDED for the following action: 1. Make all reasonable attempts to obtain private treatment records referable to the Veteran's diabetes mellitus, type II, from Dr. J.T. (November 2011 to the present) and Dr. T.S. (January 2012 to the present). If after all reasonable efforts, the records are not obtained pursuant to VA's February 2022 request, make a formal finding that additional efforts for obtaining such records would be futile. The Veteran must be notified of the requests of the record requests. If the records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected diabetes mellitus, type II, and all associated complications. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be completed. Thereafter, the examiner should address the following inquiries: (A) Identify the nature and severity of all current manifestations of the Veteran's service-connected diabetes mellitus, type II, to include all complications of such disability. (B) The examiner should also specifically address whether the Veteran's diabetes mellitus, type II, requires the regulation of activities (i.e., the avoidance of strenuous occupational and recreational activities). In addressing such inquiry, the examiner should consider the October 2021 statement from the Veteran's private physician, Dr. E.E., advising that the Veteran should be limited to light exercise. (C) The examiner should also describe the functional impairment resulting from the Veteran's diabetes mellitus, type II, and all associated complications. (Continued on the next page) A rationale for any opinion offered should be provided. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.