Citation Nr: 22017750
Decision Date: 03/26/22	Archive Date: 03/26/22

DOCKET NO. 17-64 110
DATE: March 26, 2022

REMANDED

Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, Type II (DM II) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from May 1970 to January 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision.

In November 2021, the Veteran testified before the Board.  A transcript of the hearing has been associated with the record.

1. Entitlement to an evaluation in excess of 20 percent for DM II is remanded.

At his November 2021 hearing, and in other statements, the Veteran has asserted that his DM II has increased in severity since his last VA examination in October 2016.  He specifically asserts that his DM II has manifested by requiring insulin, restricted diet, and regulation of activities.  When it is asserted that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate.  See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991).  Because the Veteran's testimony indicates worsening of his DM II, he should be afforded a new VA examination.

Also, on remand, VA should attempt to obtain VA records dated since April 2, 2018.  At his Board hearing, the Veteran testified that he had received VA treatment for his DM II since April 2018 and was expecting those records to be uploaded to VA's electronic system at any moment.  However, only records dated through April 2, 2018, have been associated with the claims file, and no records have been associated with the record since then.  Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record").  Accordingly, the claim is remanded to attempt to obtain these records.

The matters are REMANDED for the following action:

1. Obtain and associate with the record copies of the Veteran's VA medical records from April 2, 2018.  Conduct any ensuing additional development, as necessary, and document negative results.

Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e).

2. Then, schedule the Veteran for a VA examination so as to determine the current nature and severity of his service-connected DM II.  The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.

 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph R. Keselyak, 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.