Citation Nr: 0319777 Decision Date: 08/11/03 Archive Date: 08/25/03 DOCKET NO. 02-05 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. The propriety of the initial evaluation for diabetes mellitus, evaluated as 20 percent disabling from April 12, 2001. 2. The propriety of the initial evaluation for peripheral polyneuropathy, right foot, secondary to diabetes mellitus, evaluated as 10 percent disabling from April 12, 2001. 3. The propriety of the initial evaluation for peripheral polyneuropathy, left foot, secondary to diabetes mellitus, evaluated as 10 percent disabling from April 12, 2001. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Detroit, Michigan. The claims file shows that new claims have been raised in statements submitted by the veteran or his representative. A January 2002 statement by the veteran amounts to a claim of entitlement to service connection for neurological complications of diabetes mellitus affecting the stomach, upper extremities, and head. In the brief on appeal submitted in July 2003, the representative asserted entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). A TDIU claim raised by the veteran in an April 2002 statement was denied by the RO in a June 2002 rating decision, but the record before the Board contains no document representing a timely notice of disagreement with that decision. Hence, the Board regards the July 2003 assertion of entitlement to a TDIU rating as a new claim. The same April 2002 statement also contains a claim of entitlement to service connection for depression as a complication of diabetes mellitus. The Board refers the new claims to the RO for appropriate action. FINDINGS OF FACT 1. The veteran has been notified of the evidence and information needed to substantiate his claim, and all relevant evidence necessary for an equitable disposition of the issue decided herein has been obtained. 2. On account of his diabetes mellitus, the veteran takes a hypoglycemic agent, follows a restricted diet, and must restrict his activity, but does not take insulin, has not been hospitalized (e.g., for episodes of ketoacidosis or hypoglycemic reactions). He visits his diabetic care provider approximately once a month usually, but twice a month less frequently. These facts have been shown to exist from April 12, 2001. CONCLUSION OF LAW The criteria for a 40 percent evaluation for diabetes mellitus have been met from April 12, 2001. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.119, Diagnostic Code 7913 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION i. Veterans Claims Assistance Act of 2000 The claim seeking a greater initial evaluation of diabetes mellitus is subject to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), see 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002), (the VCAA), new legislation enacted on November 9, 2000. The VCAA contains extensive provisions potentially affecting the adjudication of claims for benefits pending before VA as of that date or filed thereafter. See 38 U.S.C.A. § 5107 note (Effective Date and Applicability Provisions). The statute significantly heightens VA's duties to assist the claimant in development of evidence and to provide notices pertinent to the claim. Thus, the new law enhances the previous rights of claimants. New regulations have been promulgated implementing the statute. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). With certain exceptions, the new regulations are effective as of the November 9, 2000 date of enactment of the VCAA. See 66 Fed. Reg. 45,620. Under the VCAA, VA has a duty to notify the claimant and the claimant's representative, if any, of any information and any medical and lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice from VA must indicate which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Id. Specific guidelines concerning the content of this notice are found in the implementing regulations. See 38 C.F.R. § 3.159(b). The decision of the United States Court of Appeals for Veterans Claims (Court) in Quartuccio v. Principi emphasized the importance of the notice required by section 5103 of the VCAA, as did the decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In addition, when a claim of entitlement to a benefit is presented, the VCAA charges VA with a duty to assist the claimant with the development of evidence. The VCAA requires VA to make reasonable efforts to obtain records pertinent to a claim for benefits, and if the records could not be secured, to so notify the claimant. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). When records needed to decide a claim for VA benefits are in the custody of a federal department or agency, VA must continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C. A. § 5103A; 38 C.F.R. § 3.159(c)(2). The implementing regulation prescribes the content of the notice that VA should give to a claimant if it is unable to obtain records pertinent to the claim. 38 C.F.R. § 3.159(e). The VCAA also requires VA to obtain a medical examination or opinion when such is necessary to make a decision on a claim for compensation. 38 U.S.C.A. § 5103(A); see also 38 C.F.R. § 3.159(c)(4). The Board finds that VA has developed and adjudicated the claim for a greater initial evaluation of diabetes mellitus in accordance with these statutory requirements. The RO provided the veteran with the notice required by the VCAA. The veteran's representative has pointed out correctly in its July 2003 brief on appeal, a letter sent by the RO to the veteran in July 2003 did not constitute adequate notice under section 5103 of the VCAA because it described only evidence that would support a claim for service connection, not a claim for a greater evaluation of a service-connected disability. Thus, the July 2003 letter failed to apprise the veteran of evidence that could support his claims. However, the letter otherwise fulfilled the requirements for notices under section 5103. Furthermore, at the time of the July 2003 letter, the notice required by section 5103 of the VCAA had already been provided to the veteran and his representative. The statement of the case, issued in April 2002 described the type of evidence required to demonstrate entitlement to an evaluation for the condition in question that exceeded the current rating. By referring to section 5013 of the statute and reviewing the implementing regulation, the statement of the case apprised the veteran of his and VA's respective responsibilities under the new law for securing this evidence and informed him that this evidence could be submitted within one year. See Disabled American Veterans, 327 F.3d at 1353-54. The RO obtained the veteran's service medical records. In the VA Form 21-526, Application for Compensation, that he filed in April 2001, the veteran did not identify other medical records that he considered relevant to the claims. Later, his representative submitted pertinent private medical records and reports. Under these circumstances, VA has no unfulfilled duty to seek records pertinent to the claim. Under the VCAA, the duty to obtain documentary evidence applies when the claimant, after being requested to do so by VA, "adequately identifies [such records] to the Secretary and authorizes the Secretary to obtain" them. 38 U.S.C.A. § 5103A(b). VA had a duty in this case under the VCAA to afford the veteran a medical examination in connection with the claim. VA carried out this duty. A VA medical examination for diabetes mellitus was performed in September 2002. This examination produced findings needed to decide the claim. Thus, the veteran has received the notice and assistance called for by the VCAA in connection with his claim for a greater initial evaluation for diabetes mellitus. Therefore, the Board will decide the claim on the basis of the record as it now stands on appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). b. Rating i. Background This is a case in which the disability rating at issue was rendered in conjunction with a grant of service connection. In such circumstances, the rating must address all evidence relevant to the nature and severity of disability from the effective date of service connection and, accordingly, might be comprised of separate, or "staged," ratings based on the facts shown to exist during separate periods of time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The effective date of service connection for the disability in concern on this appeal is April 12, 2001. In general, disability evaluations are assigned by applying a schedule of ratings, which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. VA regulations require that, in evaluations of a given disability, that disability be viewed in relation to its whole recorded history. See 38 C.F.R. §§ 4.1, 4.2 (2002). All VA regulations which the face of the record indicates are potentially relevant to the claim for increased evaluation will be considered by the Board, whether explicitly raised in the record or not, unless their consideration would be arbitrary, capricious, or contrary to law. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2002). In the rating of disabilities, it is not expected that all cases will show all the findings specified for a particular evaluation under a diagnostic code. At the same time, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function are always to be expected. See 38 C.F.R. § 4.21 (2002). When there is a question as to which of two evaluations shall be applied, the higher evaluation shall be assigned if the disability picture presented approximates the criteria for that rating more nearly than the criteria for the lower rating. 38 C.F.R. § 4.7 (2002). The evaluation of the degree of disability takes into account competent lay evidence, when relevant. Under the VCAA, "competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); see Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation). When after a careful review of all available and assembled data, a reasonable doubt arises regarding the degree of disability, such reasonable doubt must be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2002). Thus, a claim for a greater evaluation of disability will be granted unless it is refuted by a preponderance of the evidence of record. 38 U.S.C.A. § 5107(b). In the January 2002 rating decision that he now appeals, the veteran was granted service connection for diabetes mellitus on the basis of his exposure to herbicides while he was serving in Vietnam, see 38 C.F.R. § 3.307, 3.309(e) (2002), with an evaluation of 20 percent from the April 12, 2001 effective date of service connection. In the same rating decision, the veteran was granted service connection for peripheral neuropathy, affecting the feet, as secondary to the diabetes mellitus. With his April 2001 formal claim for compensation, the veteran submitted a March 2001 statement by his private physician, James J. Faremouth, Jr., D.O. The physician said that the veteran was diagnosed with non-insulin-dependent diabetes mellitus in July 2000 and had neuropathy associated with the condition. The physician noted that the veteran had been exposed to "neurotoxin[s] in Vietnam." In support of the veteran's claim, other private medical records were presented. Hospital outpatient treatment reports dated in 2000 and 2001 showed that the veteran was being followed for diabetes mellitus and associated neuropathy of the lower extremities, particularly the feet. These reports show that the veteran participated in a diabetes education program during which he was advised to restrict his diet and lose weight. The reports document a diagnosis of non-insulin-dependent diabetes mellitus. The reports reflect that among the veteran's prescriptions, there were prescriptions for relief of pain resulting from the peripheral neuropathy and for Amaryl [glimepiride], a hypoglycemic, and none for insulin. Treatment reports by a neurologist, Manaf Seid-Arabi, M.D., dated in October-December 2000 noted a history of diabetes mellitus and showed that the veteran was being followed for peripheral neuropathy. The reports reflect that the physician advised the veteran to avoid alcohol because it could lead to problems with his liver. The reports listed the veteran's current medications, which included the hypoglycemic Amaryl [glimepiride], but not insulin. The reports show that the veteran saw the physician approximately monthly. Treatment reports by Dr. Faremouth dated from July 2000 to October 2001 show that the veteran carried the diagnosis of non-insulin-dependent diabetes mellitus. Other diagnoses documented by the reports were hypertension, peripheral neuropathy, insomnia, tobacco abuse, and hyperlipidemia. The reports indicate that Dr. Faremouth was following the veteran for all of these problems. Among the prescriptions documented in the reports was one for the hypoglycemic Amaryl [glimepiride] but not insulin. The reports show that the veteran saw the physician approximately once a month or, less frequently, twice a month. The report of a neurological evaluation performed by a specialist, Martha A. Frankowski, M.D., in October 2001 indicates that the evaluation was done to assess the veteran's peripheral neuropathy. Diagnosing peripheral neuropathy of the lower extremities, Dr. Frankowski surmised that its etiology was most likely related to diabetes mellitus but suggested that "metabolic and nutritional factors" might have caused it instead or played a part in its development. The report listed the veteran's current medications, included the hypoglycemic Amaryl [glimepiride], but not insulin. A statement prepared by Dr. Faremouth in February 2002 related that the veteran had type II diabetes with neuropathy of the lower extremities. Dr. Faremouth asserted that the veteran had limited ability to work on account of his neuropathy because it made "standing, [sitting], and exposure to cold difficult." In a statement submitted in March, and dated in January, 2002, the veteran described the difficulties he attributed to his peripheral neuropathy and diabetes mellitus. As to the former, he said that "[his] feet basically prohibit[ed] [him] from doing what [he]want[ed] to do with any normal freedom." He described the same problems pointed to by Dr. Faremouth in his February 2002 statement. He suggested his upper extremities, stomach, and head also were affected by diabetes mellitus. Emphasizing that he was "severely limited" in what he was able to do, he asserted it was "fortunate[ ]" that he had been "laid off from work." The veteran noted that he took the hypoglycemic Amaryl "to increase insulin," but he did not say that he took insulin. The veteran was given a VA examination for diabetes mellitus in September 2002, the report of which is of record. The report related that the veteran said that he had had diabetes mellitus for the past two years, denied that he had been hospitalized for this condition (e.g., on account of ketoacidosis or hypoglycemic reactions), confirmed that he followed a restricted diet (although he indicated that he smoked and would drink wine occasionally), and denied that his activities had been restricted on account of diabetes mellitus. The report listed the veteran's current medications, which included the hypoglycemic glyburide. The diagnoses stated in the examination report were "[d]iabetes mellitus, type II, good control"; "[s]ensorimotor peripheral neuropathy of lower extremities[,] most likely a complication of diabetes mellitus"; "[m]ild proteinuria, most likely secondary to combination of diabetic neuropathy and hypertensive neuropathy"; and "[h]ypertension, not secondary to diabetes mellitus." ii. Evaluation The veteran's diabetes mellitus is rated as 20 percent disabling from April 12, 2001. The condition has been rated under Diagnostic Code 7913, which concerns diabetes mellitus. See 38 C.F.R. § 4.119, DC 7913. Evaluations authorized by Diagnostic Code 7913 include 20 percent for diabetes mellitus requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet; 40 percent for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities; and 60 percent for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities and with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice-a-month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated; and 100 percent for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. After reviewing the evidence of record in the light of these criteria, the Board finds that the 20 percent rating for diabetes mellitus currently in place from April 12, 2001 should be increased to 40 percent from the same effective date. See Fenderson. To warrant a 40 percent evaluation, diabetes mellitus must require insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913. The medical evidence of record shows that the veteran has been placed on a restricted diet. This evidence also shows that rather than insulin, the veteran takes a hypoglycemic. Use of hypoglycemics instead of insulin is contemplated by the 20 percent evaluation. See id. Despite the notation in the VA examination report that the veteran denied that his activities had been restricted on account of diabetes mellitus, the Board finds that more evidence, both lay and medical, supports the conclusion that his activities have been restricted on account of diabetes mellitus. The February 2002 statement by Dr. Faremouth expressed the physician's opinion that the veteran had limited ability to work because of the neuropathy of the lower extremities attendant upon his diabetes mellitus. In the January 2002 statement that he submitted in March 2002, the veteran confirmed that in his experience, he could not function normally because of his diabetes mellitus, which he described as causing pain in all of his extremities, and as adversely affecting his stomach, head, feet, and mood. This is stronger evidence than is the notation in the VA examination report of a second-hand statement, that of the veteran, suggesting the contrary. While the veteran has been granted separate evaluations for peripheral neuropathy affecting lower extremities, specifically, his feet, that VA has determined is related to his diabetes mellitus, the diagnostic codes under which that condition will be rated, which, as discussed in the remand below, concern peripheral nerve disease, do not seek to compensate a claimant for restriction of his activities. Diagnostic Code 7913, however, directs that all compensable complications of diabetes mellitus be considered in any rating or ratings. See 38 C.F.R. § 4.119, DC 7913 Note (1). Therefore, the Board finds that the veteran's diabetes mellitus should be rated on the basis of evidence that it has required a restricted diet and restriction of activities. Thus, two of the three criteria for a 40 percent evaluation under Diagnostic Code 7913 are present - - the requirement of insulin is determined to be absent. In the rating of disabilities, it is not expected that all cases will show all the findings specified for a particular evaluation under a diagnostic code. At the same time, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function are always to be expected. See 38 C.F.R. § 4.21. Here, when the evidence shows that two of the three characteristics specified for the 40 percent evaluation are present and the third is absent, the question to be resolved is whether the total disability picture presented by the evidence more closely resembles that implied by the 40 percent rating or the lower, 20 percent rating. See 38 C.F.R. § 4.7 (2002). Here, it is clear that all of the criteria required for a 20 percent rating have been satisfied - - in this case, use of an oral hypoglycemic agent and the requirement of a restricted diet - - and that in addition, two of the three criteria for the 40 percent rating have been. Thus, the Board must conclude that the weight of the evidence supports the assignment of the higher rating. On the other hand, the Board finds that the criteria for a 60 percent evaluation for diabetes mellitus under Diagnostic Code 7913 have not been satisfied in this case. There is no medical evidence that the veteran has suffered episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. The September 2002 VA examination report indicates that the examiner determined from the medical documentation of record and the veteran's own accounts that hospitalization on account of such problems has not been required. Medical records have shown that the veteran has sometimes visited his diabetic care provider twice month but more frequently, approximately once a month. This evidence, together with the absence of evidence of insulin use, supports the conclusion that a 60 percent evaluation for diabetes mellitus is not warranted. The preponderance of the evidence weighs against the assignment of this evaluation. Therefore, a 40 percent evaluation for diabetes mellitus will be granted under Diagnostic Code 7913 from April 12, 2001. iii. Extraschedular evaluation The Board has considered whether referral of this claim for consideration of an extraschedular evaluation is warranted under 38 C.F.R. § 3.321(b)(1) (2002). See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Referral for extraschedular evaluation, however, is based on a finding that the disability in concern presents "such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2002). Here, the veteran has not asserted, and there is no evidence, that his diabetes mellitus has caused him to be hospitalized at any time from April 12, 2001. He has alleged that his impairment has interfered with his ability to work. However, a schedular disability rating takes into account, and assesses the degree of, the industrial impairment in any particular case. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, it has been determined by schedular standards that the veteran's ability to work has not been reduced significantly by the disability in concern. There is no evidence that the diabetes mellitus exhibited in this case is so exceptional or unusual as to fall outside those schedular norms. Accordingly, the Board finds that the criteria for referral of a compensation claim for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not been met in this case. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 40 percent evaluation for diabetes mellitus is granted effective from April 12, 2001, subject to controlling regulations applicable to the payment of monetary benefits. REMAND The Board finds that it must remand the claims for an increase in the initial evaluations of peripheral polyneuropathy of the right foot and left foot, respectively, in order to ensure that they have been developed and adjudicated in accordance with the provisions of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). Recent decisions by the Court and the United States Court of Appeals for the Federal Circuit have mandated that VA ensure strict compliance with the provisions of the VCAA. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Development of evidence Among the duties VA has under the VCAA is to secure a medical examination or opinion if such is necessary to decide a claim for benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4). Additional medical findings are needed in order to ensure that the disabilities in concern are evaluated under the proper provisions of the rating schedule. In its July 2003 brief on appeal, the veteran's representative challenged the RO's selection of the diagnostic code for rating the disabilities in concern. The representative argued that while the RO evaluated the disabilities under Diagnostic Code 8525 (which concerns disease of the posterior tibial nerve), there appeared to be no reason, nor did the RO state a reason, for not evaluating the disabilities under Diagnostic Code 8524 (which concerns disease of the internal popliteal (tibial) nerve) instead. See 38 C.F.R. § 4.124a, Diagnostic Codes 8524, 8525 (2002). The representative suggested in its brief on appeal that Diagnostic Code 8524 afforded higher evaluations in some instances than did Diagnostic Code 8525 for the same level of impairment, the difference depending in those instances on which peripheral nerve was impaired and therefore, which diagnostic code would be applied. As the RO observed in its decision documents, there is no diagnostic code specifically addressing polyneuropathy of the feet and therefore, the disability may be rated by analogy. See 38 C.F.R. § 4.20 (2002). However, as the representative observed in its brief on appeal, a claimant may challenge the choice of diagnostic code made by VA adjudicators. See Smallwood v. Brown, 10 Vet. App. 93 (1997). The Board is free to acknowledge and consider a VA regulation made potentially applicable through the assertions and issues raised in the record of a claim. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). All VA regulations which the face of the record indicates are potentially relevant to the claim for increased evaluation will be considered by the Board, whether explicitly raised in the record or not, unless their consideration would be arbitrary, capricious, or contrary to law. Id. However, the selection of the proper diagnostic code under which to evaluate the veteran's service-connected peripheral polyneuropathy of the feet requires that additional medical evidence be developed first. The Board notes that a VA medical examination has not been performed in connection with these claims. No medical evidence currently of record presents findings sufficient to determine which peripheral nerve(s) is implicated or, if not implicated, suggested by analogy by the veteran's service-connected peripheral polyneuropathy of the feet. The report of private neurological evaluation conducted by a private physician in October 2001 is of record and contains a diagnosis of peripheral neuropathies, likely secondary to diabetes mellitus, affecting the lower extremities. This report reveals that the physician recommended that electromyography (EMG) testing be performed to evaluate the extent of the peripheral neuropathy of the lower extremities. It appears that such testing has not been accomplished. On remand, a VA neurological examination should be secured. The study should determine what peripheral nerve or nerves are implicated by, or, if not implicated, suggested by analogy with, the veteran's peripheral polyneuropathy of the right and left feet. The study also should determine whether the veteran has other neurological impairment of the lower extremities besides that affecting the feet and identify the peripheral nerve or nerves in concern. Thereafter, the RO should review the examination report and other medical evidence of record and determine what diagnostic code or codes should be applied to evaluate the peripheral neuropathy of the lower extremities that is shown. The RO should explain the choice of diagnostic code in a supplemental statement of the case. Before securing the VA examination, the RO should ensure that it has secured all medical records or other documentary evidence pertinent to the claims. Under the VCAA, VA has a duty to assist a claimant with obtaining medical and other documentary evidence pertinent to a claim. 38 U.S.C.A. § 5103(A)(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). VA is required to make reasonable efforts to obtain records pertinent to the claim and to notify the claimant if the records could not be secured. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). The implementing regulation prescribes the content of the notice that VA must give to a claimant if it is unable to obtain records pertinent to the claim. 38 C.F.R. § 3.159(e). Because the ratings at issue were assigned with a grant of service connection, the evaluation performed on remand must address all evidence relevant to the nature and severity of disability from the effective date of service connection. Accordingly, the evaluation might be comprised of separate, or "staged," ratings based on the facts shown to exist during separate periods of time. Fenderson, 12 Vet. App. at 126. The effective date of service connection for the disabilities in concern is April 12, 2001. Medical records and other documentary evidence pertinent to the claims and dated from this effective date should be part of the record. While the claims are in remand status, then, the RO should ask the veteran to identify any medical or documentary evidence or information that he believes could be pertinent to the claims and has not yet been associated with the claims file. Care should be taken to ask the veteran about treatment records that may have been prepared by a physician, Dr. "Ghaffarloo," whom he named in a statement submitted in 2002 and said that he had seen for his peripheral neuropathy. Records corresponding to the information should be part of the claims file. Notice As observed above, section 5103 of the VCAA requires VA to provide a claimant with certain notice concerning the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). The decision of the Court in Quartuccio v. Principi emphasized the importance of the notice required by this section, as did the decision in Disabled American Veterans. Therefore, after performing the development requested here, the RO should consider whether the veteran has been given notice of the evidence needed to substantiate his claims under all applicable diagnostic codes and other regulations. The RO should issue the veteran an additional notice if it determines that the due process protections intended by the notice requirement of section 5103 have not been extended fully by the notice that has been given already in the case. See Disabled American Veterans, 327 F.3d at 1353-54. Pursuant to authority granted to it by 38 C.F.R. § 19.9(a)(2) (2002), a final rule that went into effect on February 22, 2002, and before May 1, 2003, the Board would have taken action on its own to carry out the evidentiary development needed to decide the claims and provide any needed additional notice to the veteran. However, the Court of Appeals for the Federal Circuit held on May 1, 2003 in Disabled American Veterans that when the Board readjudicates a claim on the basis of evidence it obtained without first securing the claimant's waiver of initial consideration of that evidence by the agency of original jurisdiction, the claimant is denied the right under 38 U.S.C. § 7104(a) to "one review on appeal to the Secretary." 38 U.S.C.A. § 7104(a) (West 2002). Hence, the Federal Circuit invalidated 38 C.F.R. § 19.9(a)(2) as inconsistent with the statute. Disabled American Veterans, 327 F.3d at 1346-48. In a precedential opinion, the General Counsel of VA concluded that the holding in Disabled American Veterans did not prohibit the Board from developing evidence in an appeal before it but permitted the Board to readjudicate the claim on the basis of evidence it had developed only when the claimant has waived initial consideration of the evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03 (May 1, 2003). Later, in light of Disabled American Veterans and policy considerations, VA determined that VBA would conduct all evidentiary development pertinent to a claim on appeal other than certain specific development that the Board carries out pursuant to statute. See 38 U.S.C.A. §§ 7107(b), 7109 (a) (West 2002). In other words, it is the policy of the Board that apart from this limited class, all development of evidence will be conducted at the level of the agency of original jurisdiction. Accordingly, this case is REMANDED for the following actions: 1. The RO should ensure that all additional notification and development action required by the VCAA and its implementing regulations, in addition to the action requested below, and appearing to be necessary in this case has been completed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). In particular, the RO should consider, after performing the evidentiary development requested below, whether additional notice under section 5103 of the VCAA should be provided to the veteran. Any notice given, or action taken, by the RO must comply with the holdings of Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). 2. The RO should write to the veteran and request that he identify or submit any additional evidence or information, including private and VA medical records, in support of his claims for greater initial evaluations of his service- connected peripheral polyneuropathy of the right and left feet. The RO's letter should include a specific request that the veteran identify all medical treatment for his peripheral neuropathy that he received from Dr. "Ghaffarloo," as indicated by the veteran in the statement that he submitted in 2002. The veteran should be asked to give all other information needed to obtain such records. A copy of the letter to the veteran should be sent to his representative. The veteran and his representative should then be given appropriate time to respond, and the RO should attempt to obtain the identified records or other information. Regardless of whether it receives a response, the RO should attempt to obtain outstanding VA medical treatment records dated since April 12, 2001 that could be relevant to the claims. The RO should document in the claims file all attempts to secure this evidence, and provide appropriate notice to the veteran regarding records that could not be obtained. 3. After the above-requested development has been completed, the RO must afford the veteran with a VA neurological examination to determine the nature and severity of (i) his peripheral polyneuropathy of the right and left feet and (ii) any other peripheral polyneuropathy or neuropathy of the right and/or left lower extremities. If the examiner determines that the veteran exhibits peripheral neuropathy or neuropathy of the right and/or left lower extremities other than of the feet, the examiner should so state in the examination report and should also offer an opinion there as to whether it is at least as likely as not (50 percent or better) that this condition is etiologically related to the veteran's service-connected diabetes mellitus or to exposure to herbicides (to which VA has attributed the veteran's diabetes mellitus). All tests and studies, including EMG testing and nerve conduction studies, thought necessary by the examiner should be performed. The examiner should review all pertinent documentation in the claims file. One purpose of the examination is to determine the peripheral nerve or nerves implicated by (i) the peripheral polyneuropathy of the right and left feet, and (ii) by peripheral polyneuropathy or neuropathy of any portion of the right and left lower extremities other than the feet, if found by the examiner. In the examination report, the peripheral nerve or nerves implicated by these conditions (or, if no nerve impairment is found, suggested by analogy on the basis of the symptoms displayed) must be identified specifically in the examination report (e.g., internal popliteal (tibial) nerve, posterior tibial nerve, etc.), with separate findings for the right and left lower extremities and within each of those categories, separate findings for each foot. It should also be stated whether it is at least as likely as not that peripheral polyneuropathy or neuropathy of any portion of the lower extremities other than the feet, if found, is related to diabetes mellitus or peripheral polyneuropathy of the feet. Also included in the examination report should be findings concerning (i) whether there is "paralysis" of the implicated nerve or nerves and if so, whether the paralysis is "complete" or "incomplete" (i.e., "incomplete" in that there is a degree of lost or impaired function substantially less than for complete paralysis, whether due to varied nerve lesion or to partial nerve regeneration) and if "incomplete," whether the nerve involvement is wholly "sensory" and not more; (ii) whether there is "neuritis" involving the implicated nerve or nerves that is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain (and if the latter, whether "excruciating" at times); (iii) whether there is "neuralgia" involving the implicated nerve or nerves that is characterized by a dull and intermittent pain of typical distribution so as to identify the affected nerve or nerves. 4. Thereafter, the RO should review the examination report and all other medical evidence in the claims file and make a determination as to what is the proper diagnostic code or codes under which to rate the peripheral polyneuropathy of the right and left feet and any additional polyneuropathy of the right lower extremity and/or the left lower extremity. In making this determination, the RO should observe that a claimant is entitled to the highest evaluation available under all applicable diagnostic codes and other regulations. Schafrath. 5. After making the determination requested in paragraph 4, above, the RO should consider whether the veteran has been given notice of the evidence needed to substantiate his claims under all applicable diagnostic codes and other regulations that fully satisfies section 5103 of the VCAA and the holdings in Quartuccio v. Principi and Disabled American Veterans v. Secretary of Veterans Affairs. If it finds that additional notice is needed, the RO should issue that notice to the veteran and his representative. The veteran and his representative must be given appropriate time to respond. 6. Then, the RO should readjudicate the claims. In evaluating the service- connected disabilities, the RO should take into account findings in the VA examination report concerning any peripheral polyneuropathy or neuropathy of the right and/or left lower extremity. The RO should consider whether a "staged" rating should be assigned for any of the disabilities in concern. Fenderson. If a claim is not granted in full, the veteran and his representative should be provided a supplemental statement of the case concerning that claim. The supplemental statement of the case should include notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations, including 38 C.F.R. § 3.159. The supplemental statement of the case must explain the basis upon which the RO chose the diagnostic code or codes that it did to rate the disabilities. The veteran and his representative should be allowed appropriate time in which to respond. Then, if appellate review is required, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.