Citation Nr: 1411948 Decision Date: 03/21/14 Archive Date: 04/02/14 DOCKET NO. 09-40 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to increased ratings for diabetes mellitus, currently assigned "staged" ratings of 20 percent prior to August 15, 2011, and 40 percent from that date. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). 3. Entitlement to service connection for bladder disability. 4. Entitlement to an increased rating for right hand peripheral neuropathy, currently rated as 10 percent disabling. 5. Entitlement to an increased rating for left hand peripheral neuropathy, currently rated as 10 percent disabling. 6. Entitlement to an increased rating for right lower extremity peripheral neuropathy, currently rated as 10 percent disabling. 7. Entitlement to an increased rating for left lower extremity peripheral neuropathy, currently rated as 10 percent disabling. 8. Entitlement to an increased rating for bilateral hearing loss, currently rated noncompensable. 9. Entitlement to TDIU prior to August 15, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010 a Decision Review Officer hearing was held at the RO, and in March 2011 a videoconference Board hearing was held before the undersigned Veterans Law Judge; transcripts of both hearings are included in the claims file. The matters were remanded by the Board in June 2011 for further development. An interim [August 2012] rating decision granted a 40 percent rating for diabetes mellitus effective August 15, 2011. The issues of service connection for bladder disability, and increased ratings for hearing loss and peripheral neuropathy of both hands and both lower extremities, and the issue of entitlement to TDIU prior to August 15, 2011, are REMANDED to the RO via the Appeals Management Center (AMC). FINDINGS OF FACT 1. Prior to August 15, 2011, the Veteran's service-connected diabetes mellitus was not shown to require insulin, restricted diet, and regulation of activities. 2. From August 15, 2011 to the present, the Veteran's service-connected diabetes mellitus is not shown to require insulin, restricted diet, and regulation of activities 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. 3. The Veteran's service connected disabilities (diabetes mellitus type 2, rated 40 percent (effective August 15, 2011); right hand peripheral neuropathy, rated 10 percent; left hand peripheral neuropathy, rated 10 percent; right lower extremity peripheral neuropathy, rated 10 percent; left lower extremity peripheral neuropathy, rated 10 percent; tinnitus, rated 10 percent; erectile dysfunction, rated 0 percent; and bilateral hearing loss, rated 0 percent) are rated 70 percent combined effective August 15, 2011, and preclude substantially gainful employment effective from that date. CONCLUSIONS OF LAW 1. Prior to August 15, 2011, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected diabetes mellitus were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 2. From August 15, 2011, the criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 3. The criteria for a TDIU rating are met effective from August 15, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Inasmuch as this decision grants the benefit of entitlement to TDIU sought, there is no reason to belabor the impact of the VCAA in that matter; any notice defect or duty to assist omission is harmless. Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). By September 2006 and May 2008 letters, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal and was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). These letters also informed the Veteran of disability rating and effective date criteria. The Board notes that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records (STRs), VA and private treatment records are associated with the claims file and the Veteran has not identified any pertinent evidence that remains outstanding. The RO arranged for VA examinations in October 2006, September 2009, August 2011, and May 2012. The examinations were adequate as the examiners considered the evidence of record and the reported history of the Veteran, conducted thorough examinations of the Veteran, noting all findings necessary for proper adjudication of the matters, and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Increased ratings for diabetes mellitus Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Diabetes mellitus is rated under Diagnostic Code 7913. A 20 percent rating is warranted for diabetes requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities 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. The Veteran's claim for an increased rating was received in September 2006. In his increased rating claim statement, the Veteran stated that he had recently begun taking insulin. He also claimed that he had a restricted diet and regulation of activities. On September 2006 VA treatment, the Veteran reported that his primary care physician had prescribed Levemir pen injections and that his blood sugars had improved. He was given diet advisement and literature to review. On October 2006 VA examination, the Veteran reported that he was started on an oral hypoglycemic agent in 1990, and he was later started on NPH insulin in September 2006, which he injected in the mornings. He also took Glucovance and rosiglitazone. He denied any side effects from his medications. He denied any hospitalization for his diabetes. He denied ketoacidosis but stated that he would experience hypoglycemic reactions, which responded readily to drinking juice or eating a candy. He stated that he followed the recommended decrease of carbohydrate intake but no corresponding caloric restriction, and he denied any restriction of activities on account of his diabetes. The examiner noted that the Veteran did not have peripheral atherosclerosis of the lower extremities or any cardiac or neurovascular symptoms related to diabetes. The examiner noted there were no symptoms associated with diabetic nephropathy and no diabetic skin or gastrointestinal symptoms. The examiner noted that there was no evidence of diabetic retinopathy on January 2006 or July 2006 treatment. The Veteran claimed numbness in the whole right arm and the left hand as well as in the right leg and left foot. He reported frequency of urination as well as erectile dysfunction. The diagnoses included insulin-requiring diabetes mellitus type 2; neurogenic bladder/urinary bladder impairment not found; bilateral upper and lower extremity peripheral neuropathy; erectile dysfunction; peripheral atherosclerosis of the bilateral lower extremities not found; and bilateral hearing loss. Regarding unemployability, the October 2006 examiner noted the Veteran's report that he stopped working in July 2006 secondary to problems with pain in the legs and the left foot, after working as a law enforcement officer for 20 years. The examiner noted the diagnosis of diabetes mellitus with reports of neuropathy in the upper and lower extremities bilaterally, and no evidence of diabetic retinopathy, cardiovascular disease, or kidney disease. The examiner opined that the Veteran had mild to moderate limitation in a normal occupational environment, but he could still engage in sedentary employment. On March 2009 VA treatment, the assessments included type 2 diabetes mellitus without complications, and diabetic peripheral neuropathy. He was given a trial prescription of Neurontin for pain and counseled on his diet and exercise. On September 2009 VA examination, the Veteran reported that his weight had increased at least 20 pounds over the previous two years. He reported that he stopped working in July 2006 due to being disabled. He reported being unable to walk due to the pain in his legs and due to back problems; he had been using a cane for at least four months. His current medications included gabapentin for pain, vardenafil for erectile dysfunction, glyburide/metformin, and subcutaneous insulin; he denied any side effects from the medications except for weight gain. He reported no history of malignancy of the urinary tract system, nephritis, or renal failure. He had had a lot of urinary infections. He had no urinary incontinence or skin problems. His diet was not restricted, although he refrained from high cholesterol or high sugar foods. His activity was not restricted, and he walked regularly. He maintained his activities of daily living very well. He reported leg and foot pain and numbness over the previous eight years or more, with relief from gabapentin. Diabetic retinopathy had been noted on July 2009 treatment. The examiner's diagnoses included insulin requiring diabetes mellitus type 2, peripheral neuropathy of the upper and lower extremities bilaterally, mild nonproliferative diabetic retinopathy, and erectile dysfunction. The examiner opined that the Veteran's diabetes mellitus with peripheral neuropathy may mildly interfere with his ability to function in a normal occupational environment, whereas his back disability may moderately impact on such ability. In an October 2009 statement, Dr. Caraveo stated that the Veteran has diabetes mellitus with peripheral neuropathy of the bilateral upper and lower extremities and diabetic retinopathy, which impact his ability to work at any job. He stated that he had examined the Veteran on several occasions over the previous three years and opined that the Veteran required multiple oral medications, insulin, restricted diet and regulation of activities due to his diabetic condition. At a February 2010 RO hearing, the Veteran testified that his diabetes had affected his strength, ability, and speed, and he had a lot of pain in his hands and feet. He tired quickly and was lightheaded from his medications. He testified that his doctor had restricted his diet and activities; he stated that he could not lift anything heavy, he could not run or swim, and he could not do a lot of activities he used to do. He testified that he had to urinate four to five times per night, and he woke up with numbness in his hands. On March 2011 VA treatment, the Veteran reported urinary frequency and nocturia. The assessments included diabetes with a neurological manifestation. His Lantus medication was increased and he was instructed to walk daily. He was counseled on a high fiber diet and exercise. At a March 2011 Board hearing, the Veteran testified that his doctor restricted his activities due to diabetes, limiting his cooking for lack of coordination; he testified that the restricted activities were due to his peripheral neuropathies. He testified that he took his insulin and medication twice per day. He had been hospitalized in 2010 for two episodes of pancreatitis and one episode of hypoglycemia. He testified that he had numbness, pain, and loss of coordination in his hands due to peripheral neuropathy, and he had pain and balance problems in his feet due to peripheral neuropathy as well. On August 15, 2011 VA examination, the Veteran reported that he had been on the medication Lantus for the past 2 to 3 years, and his neuropathy had worsened since 2002; he also had diabetic retinopathy. His medications included Lantus and glyburide/metformin, with no side effects. He reported fatigability and episodes of hypoglycemia. His genitourinary symptoms included hesitancy, erectile dysfunction, and urinary frequency. He reported pain in both feet precipitated by walking and standing, with a moderate severity and occurring weekly. He denied any hand problems. He reported paresthesias and numbness in the hands and feet. On physical examination, he walked with a cane. Tenderness was noted to both feet. Sensation of the bilateral upper and lower extremities was decreased to light touch. The diagnoses included diabetes with retinopathy and peripheral neuropathy; the effects on his occupational activities included decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and pain. The examiner opined that due to the Veteran's neuropathy, retinopathy and lumbar degenerative disease, his physical and recreational activities were limited and strenuous activities avoided. The examiner opined that the service connected diabetes with neuropathy and retinopathy, paralysis of the median and popliteal nerves, will have a severe impact for physical employments and a moderate impact for sedentary activities; the non-service connected chronic obstructive pulmonary disease, lumbar degenerative disease, sleep apnea, benign prostatic hypertrophy, and Barret esophagus would have a moderate to severe impact for physical employments and a mild to moderate impact for sedentary activities. On May 2012 VA examination, the diagnoses included diabetes mellitus type 2 and diabetic peripheral neuropathy. Treatment included prescribed insulin of more than one injection per day, and regulation of activities; the examiner specified that the Veteran had been told not to engage in sporting activities but was encouraged to walk for exercise. The Veteran reported that he visited his primary care provider less than two times per month. He reported no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the previous 12 months. He was noted to have diabetic peripheral neuropathy as well as bilateral carpal tunnel syndrome due to diabetes mellitus. The examiner opined that the Veteran's diabetes with complications impacted his ability to work, noting that the Veteran had poorly controlled diabetes affecting his general strength and his ability to participate in any activity more demanding than walking. The examiner stated that the Veteran had worked at a prison correctional institution and his diabetic condition prevented him from returning to this occupation; he could not participate in exercise more demanding than walking, and his diabetes was poorly controlled which added to his disability. He had peripheral neuropathy including bilateral median neuropathy affecting his hands. A June 2012 nerve study was consistent with lower extremity diabetic peripheral neuropathy and bilateral carpal tunnel syndrome that explained his hand symptoms, as diabetes is a known cause for carpal tunnel syndrome and is the cause for the Veteran's hand symptoms. Based on these findings, an August 2012 rating decision granted a 40 percent rating for diabetes mellitus effective August 15, 2011, the date of the VA examination reflecting an increase in severity. During the period prior to August 15, 2011, the evidence supports a finding that the disability warranted a 20 percent rating, but no higher. Examinations during that period did not indicate that the Veteran's diabetes mellitus required regulation of activities as to warrant a 40 percent rating. Indeed, on October 2006 and September 2009 VA examinations, the Veteran specifically denied any restriction of activities on account of his diabetes. The Board notes the October 2009 statement from Dr. Caraveo stating that the Veteran's diabetes mellitus required regulation of activities due to his diabetic condition. However, it is unclear upon what criteria or history of treatment this opinion was given, as no further explanation was offered regarding the Veteran's treatment history with Dr. Caraveo, and the doctor did not specify that such regulation of activities was due to the diabetes itself (as opposed to its complications). The statement is therefore afforded little probative weight. Overall, the Board does not find that the criteria for a rating of 40 percent were met during the period prior to August 15, 2011. For the period from August 15, 2011 to the present, the evidence supports a finding that the disability warrants a 40 percent rating, but no higher. Examinations in August 2011 and May 2012 showed regulation of activities due to diabetes, based on which the 40 percent rating was assigned. On the August 2011 and May 2012 VA examinations cited above, there is no evidence of any episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider to warrant a rating in excess of 40 percent. On August 2011 examination, the Veteran reported "episodes of hypoglycemia" but did not state that these episodes required hospitalization or twice a month visits to his provider for treatment. On May 2012 examination, the Veteran reported that he visited his primary care provider less than two times per month, and he denied any episodes of ketoacidosis or hypoglycemia requiring hospitalization over the previous 12 months. The Board notes that the Veteran is service connected for peripheral neuropathies of both upper and both lower extremities, with separate ratings of 10 percent for each extremity. The Board also recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disability on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. The matter of entitlement to a total disability rating based on individual unemployability is addressed below. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA's General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities (diabetes mellitus type 2, rated 40 percent (effective August 15, 2011); right hand peripheral neuropathy, rated 10 percent; left hand peripheral neuropathy, rated 10 percent; right lower extremity peripheral neuropathy, rated 10 percent; left lower extremity peripheral neuropathy, rated 10 percent; tinnitus, rated 10 percent; erectile dysfunction, rated 0 percent; and bilateral hearing loss, rated 0 percent). The combined rating (effective August 15, 2011) is 70 percent. The schedular ratings meet the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Consequently, the only question remaining is whether due to the service-connected disabilities he is unable to engage in a substantially gainful occupation. In a July 2006 statement, Dr. Garcia cited the Veteran's primary medical conditions as diabetes mellitus, diabetic neuropathy (moderately severe, with leg weakness, numbness, and pain), and hyperlipidemia. Dr. Garcia opined that the neuropathy affected the Veteran's agility, reflexes, and general ability to react physically, and he opined that the Veteran was therefore unable to perform his job. On an August 2006 Application for Increased Compensation Based on Unemployability, the Veteran contended that his diabetes and bilateral neuropathy prevented him from securing or following any substantially gainful occupation. He stated that he was unable to work due to the neuropathy pain, which also limited his general ability to react physically. He indicated that he last worked full time in July 2006 as a correctional officer for the State of New Mexico Department of Corrections. He indicated that he left his last job because of his disabilities. On October 2006 VA examination, the examiner opined that the Veteran had mild to moderate limitation in a normal occupational environment, but he could still engage in sedentary employment. In a May 2007 memorandum, the State of New Mexico Corrections Department stated that the Veteran had resigned from his position in November 2006, noting that he was unable to perform his job duties as a correctional officer due to being diagnosed as permanently disabled. In a July 2007 statement, Dr. Garcia reiterated the Veteran's primary medical conditions and added that the Veteran's neuropathic pain in his feet and legs had recently worsened, making prolonged standing or walking more difficult. Social Security Administration records include a May 2009 decision with findings that the Veteran's disabilities including diabetes mellitus, peripheral neuropathy, diabetic retinopathy, neurogenic bladder, hypertension, lumbar degenerative disc disease and spondylosis, hearing loss, and glaucoma rendered him disabled and entitled to disability benefits since July 2006. On September 2009 VA examination, the examiner opined that the Veteran's diabetes mellitus with peripheral neuropathy may mildly interfere with his ability to function in a normal occupational environment, whereas his back disability may moderately impact on such ability. At a February 2010 RO hearing, the Veteran testified that he was medically retired from his job as a correctional officer because he could not walk very much and he was unable to take care of himself regarding putting prisoners in jail. At a March 2011 Board hearing, the Veteran testified that he was reviewed for medical retirement toward the end of his employment, which was approved based on his diabetes and peripheral neuropathies. On August 2011 VA examination, the examiner opined that due to the Veteran's neuropathy, retinopathy and lumbar degenerative disease, his physical and recreational activities were limited and strenuous activities avoided. The examiner opined that the service connected diabetes with neuropathy and retinopathy, paralysis of the median and popliteal nerves, will have a severe impact for physical employments and a moderate impact for sedentary activities; the non-service connected COPD, lumbar degenerative disease, sleep apnea, BPH, and Barret esophagus would have a moderate to severe impact for physical employments and a mild to moderate impact for sedentary activities. On May 2012 VA examination, the examiner opined that the Veteran's diabetes with complications impacted his ability to work, noting that he had poorly controlled diabetes affecting his general strength and his ability to participate in any activity more demanding than walking. The examiner stated that the Veteran had worked at a prison correctional institution and his diabetic condition prevented him from returning to this occupation; he could not participate in exercise more demanding than walking, and his diabetes was poorly controlled which added to his disability. The Board notes that the schedular criteria for TDIU were met effective August 15, 2011, when the rating for the diabetes was increased to 40 percent. The August 2011 VA examination which was a basis for the increase also includes an opinion that the service-connected diabetes with associated service-connected disabilities have a severe impact on the Veteran's physical ability to engage in his prior employment as a police officer. The record shows that this was his profession for many years; only one year of college has been reported. Based on this evidence, the Board believes that the Veteran's service-connected disabilities have precluded gainful employment at least from August 15, 2011. A TDIU from that date is therefore warranted. The matter of entitlement to TDIU prior to August 15, 2011, is addressed in the Remand section of this decision. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus prior to August 15, 2011, is not warranted. Entitlement to a rating in excess of 40 percent for diabetes mellitus from August 15, 2011, is not warranted. To this extent, the appeal is denied. A TDIU rating is warranted, effective August 15, 2011. To this extent, the appeal is granted, subject to the regulations governing payment of monetary awards. REMAND The question of entitlement to TDIU prior to August 15, 2011, may not be addressed by the Board without preliminary action at the RO level. As noted in the prior Remand, the Veteran has raised claims of service connection for bladder disability (previously severed) and increased ratings for peripheral neuropathy of the hands, peripheral neuropathy of the lower extremities, and for hearing loss. The Board was able to grant TDIU effective August 15, 2011, based on the evidence now of record. However, the question of whether TDIU is warranted prior to August 15, 2011, may be impacted by the RO's determinations on these several claims raised by the Veteran., not only as to the schedular ratings for the service-connected disabilities, but also as to service connection for bladder disability. These new issues are intertwined with the question of TDIU prior to August 15, 2011. Accordingly, the case is hereby REMANDED for the following actions: 1. The RO should take appropriate action to furnish VCAA notice, fully develop, and adjudicate that Veteran's claim of service connection for bladder disability (previously severed) and his claims of increased ratings for peripheral neuropathy of the hands and lower extremities, and for hearing loss. 2. After completion of the above, the RO should review the claims file and determine if entitlement to TDIU prior to August 15, 2011, is warranted. Unless the full benefit sought by the Veteran is granted, the RO should issue an appropriate supplemental statement of the case and afford an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs