Citation Nr: 1122575 Decision Date: 06/10/11 Archive Date: 06/20/11 DOCKET NO. 09-42 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for service-connected diabetic neuropathy of the left lower extremity. 2. Entitlement to an evaluation in excess of 20 percent for service-connected diabetic neuropathy of the right lower extremity. 3. Entitlement to a compensable evaluation for service-connected left ulnar nerve neuropathy prior to August 23, 2010. 4. Entitlement to an evaluation in excess of 10 percent for service-connected left ulnar nerve neuropathy from August 23, 2010. 5. Entitlement to service connection for a neurological condition of the right upper extremity, claimed as secondary to service-connected diabetes mellitus, type II. 6. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and adjustment disorder with depressed mood, to include as secondary to service-connected diabetes mellitus, type II. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from October 1969 to February 1972. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2008 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (the RO). In his October 2009 substantive appeal, the Veteran indicated his desire to present evidence and oral testimony at a VA hearing before a Veterans Law Judge at the RO (a Travel Board hearing). In March 2011 correspondence, the Veteran stated that he no longer desired to have such a hearing. The Veteran has not since requested another hearing. The hearing request is therefore deemed to have been withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2010). During the pendency of the appeal, the RO increased the evaluations assigned to the Veteran's service-connected diabetic neuropathy of the bilateral lower extremities; both disabilities were assigned 20 percent evaluations, effective April 29, 2008 (the date of the claims for increase). Additionally, an increased evaluation from a noncompensable rating to a 10 percent rating was granted for the Veteran's service-connected left ulnar nerve neuropathy; effective August 23, 2010. As such, the evaluation concerning the Veteran's service-connected left ulnar nerve neuropathy has been "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes, with respect to increased ratings, that with a claim for an original or increased rating, the Veteran will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The United States Court of Appeals for Veterans Claims (the Court) further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. As such, those issues remain in appellate status and have been recharacterized as stated on the title page of this decision. Clarification of an issue on appeal The Veteran initially filed a claim for service connection for depression. In the specific context of mental disorders, the Court has held that "when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This case clarifies the appropriate posture for claims such as the Veteran's, where multiple mental disorders, and/or disparate diagnoses are involved. Indeed, during the pendency of this appeal, the Veteran has been diagnosed with major depressive disorder and adjustment disorder with depressed mood. See the September 2008 VA psychiatric examination report. Accordingly, the Board is expanding the issue on appeal at this time, as reflected on the title page of this decision, and will consider whether service connection may be awarded for an acquired psychiatric disorder, to major depressive disorder and adjustment disorder with depressed mood, as instructed by the Court in Clemons. The issues of (1) entitlement to a compensable evaluation for service-connected left ulnar nerve neuropathy prior to August 23, 2010, (2) entitlement to an evaluation in excess of 10 percent for service-connected left ulnar nerve neuropathy from August 23, 2010, (3) entitlement to service connection for a neurological condition of the right upper extremity, to include as secondary to service-connected diabetes mellitus, type II, (4) entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and adjustment disorder with depressed mood, to include as secondary to service-connected diabetes mellitus, type II, and (5) entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected peripheral neuropathy of the left lower extremity is productive of burning, tingling, pain and loss of sensation and is congruent with severe incomplete paralysis. There is no evidence of complete paralysis of any nerve of the lower left extremity or incomplete paralysis of the sciatic nerve. 2. The Veteran's service-connected peripheral neuropathy of the right lower extremity is productive of burning, tingling, pain and loss of sensation and is congruent with severe incomplete paralysis. There is no evidence of complete paralysis of any nerve of the lower right extremity or incomplete paralysis of the sciatic nerve. 3. The competent evidence of record does not show that the Veteran's service-connected peripheral neuropathy of the left and/or right lower extremities are so exceptional or unusual that referral for extraschedular consideration by the designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation, but no more, for severe incomplete paralysis of peroneal nerve of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.6, 4.124a, Diagnostic Codes 8521, 8621 and 8721 (2010). 2. The criteria for a 30 percent evaluation, but no more, for severe incomplete paralysis of peroneal nerve of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.6, 4.124a, Diagnostic Codes 8521, 8621 and 8721 (2010). 3. The criteria for referral of the Veteran's service-connected peripheral neuropathy of the left and/or right lower extremities for consideration on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased evaluations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Prior to initial adjudication of the Veteran's claims in December 2008, a letter dated in May 2008 fully satisfied the duty to notify provisions concerning his claims for increase evaluations, to include notification that the Veteran's service-connected disabilities had worsened and how VA determines disability ratings and effective dates as the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed that evidence was needed showing his service-connected disabilities had increased in severity. He was informed of the types of evidence that could substantiate his claims, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated for his service-connected disabilities and informed that VA was responsible for obtaining any federal records, VA records, and a medical examination, if necessary. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Additionally, private treatment records identified by the Veteran have been obtained and associated with the Veteran's claims file. Also, the Board notes that the RO has obtained the Veteran's treatment records and favorable decision associated with his disability benefits claim from the Social Security Administration (SSA). The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The RO provided the Veteran appropriate VA examinations in connection with his claims decided herein in February 2006, September 2007, September 2008, September 2009, December 2009 and August 2010. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The February 2006, September 2007, September 2008, September 2009, December 2009 and August 2010 VA examination reports are thorough and supported by the Veteran's VA, private and SSA treatment records. The VA examiners reviewed the Veteran's VA claims file and recorded objective findings as well as the Veteran's subjective complaints. Accordingly, the Board concludes that the February 2006, September 2007, September 2008, September 2009, December 2009 and August 2010 VA examinations are adequate for the purposes of this decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Sanders v. Nicholson, 487 F.3d 881 (2007). Increased Ratings Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2010). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart, supra. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2010). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2010); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, as will be discussed further below, it appears that the Veteran's symptomatology regarding his service-connected disabilities discussed herein is neurological. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The peripheral neuropathy claims As noted on the title page and in the Introduction, the Veteran is in receipt of separate 20 percent evaluations for peripheral neuropathy in each of his legs. Since these disabilities manifest with similar symptomatology and are evaluated under the same Diagnostic Codes, for the sake of economy, the Board will discuss them together. Initially, the Board notes that, in addition to his service-connected peripheral neuropathy associated with his service-connected diabetes mellitus, type II, the Veteran has also been diagnosed with lumbar radiculopathy. The Veteran is not service connected for this sciatic nerve disturbance or the underlying lumbar spine condition. It is now well settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The February 2006 VA examination report reflects that the Veteran demonstrated decreased sensation in his right leg which was "consistent with lumbar radiculopathy." See the February 2006 VA examination report. The September 2007 VA examiner reported that the Veteran experiences "shooting pains" down his right leg due to his lumbar radiculopathy. See the September 2007 VA examination report. Otherwise, the competent medical and other evidence of record fails to draw any distinction between the Veteran's service-connected peripheral neuropathy of the right lower extremity and his and nonservice-connected lumbar radiculopathy and sciatic nerve disturbance. There appears to be no realistic way of distinguishing such symptoms. Indeed, the September 2008 and August 2010 VA examiners stated that they were unable to differentiate which nerves were involved. See the September 2008 and August 2010 VA examination reports. Therefore, except for the decreased sensation and "shooting pains" in the Veteran's right leg described in the February 2006 and September 2007 VA examination reports, the Board will assume that all of the Veteran's neurological symptomatology of his bilateral lower extremities is attributed to his service-connected peripheral neuropathy. The Veteran's service-connected peripheral neuropathy of the bilateral lower extremities are each evaluated 20 percent disabling as per 38 C.F.R. § 4.124a, Diagnostic Code 8621 (2010) (providing ratings for neuritis of the external popliteal nerve (common peroneal)). The ratings for Diagnostic Code 8621 use the schedule for Diagnostic Code 8521, which provides ratings for paralysis (complete and incomplete) of the external popliteal nerve. Diagnostic Code 8521 provides that moderate incomplete paralysis is rated as 20 percent disabling and severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated as 40 percent disabling. Additionally, Diagnostic Code 8721 provides a rating for neuralgia of the external popliteal nerve also via Diagnostic Code 8521. The Board notes that words such as "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2010). The words "moderate" and "severe" are not defined in the VA Rating Schedule. The Board observes that "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition 871. "Severe" is generally defined as "of a great degree: serious." See Webster's Ninth New Collegiate Dictionary (1990) 1078. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Discussion Review of the competent medical and other evidence of record reflects that the Veteran complained of burning, numbness, tingling and pain in bother lower extremities due to his service-connected peripheral neuropathy. The Veteran reported that the pain and tingling interfere with his sleep. While the Veteran does not demonstrate an antalgic gait or utilize assistive devices, it was noted that he has difficulty standing for long period of time and walking long distances. See the February 2006, September 2007, September 2008, December 2009 and August 2010 VA examination reports. The Board notes that the Veteran's complaints of numbness in his lower extremities appear to have increased in severity. Initially, the February 2006 VA examination report reflects the Veteran's subjective complaints of numbness. The September 2007 VA examination report reflects that the Veteran reported that he experienced numbness in his right thigh and both feet. The December 2009 VA examination report reflects that the Veteran demonstrated diminished vibration and pinprick sensation in both legs and feet, scoring "0 out of 5" upon testing of both feet and legs. The most recent VA examination report, dated in August 2010, reflects that the Veteran reported "total numbness" from his toes to his thighs on both legs and he demonstrated motor strength and deep tendon flexes at 4/5+ and +1/4, respectively in his lower extremities. In light of above, the Board concludes that the Veteran's service-connected peripheral neuropathy of the bilateral lower extremities is productive of severe incomplete paralysis, the criteria for a 30 percent evaluation under Diagnostic Code 8521. This is true throughout the pendency of the appeal. See Francisco and Hart, both supra. The Board has considered whether higher evaluations may be assigned under other Diagnostic Codes. Since the Veteran has not demonstrated complete paralysis of any peripheral nerve in either lower extremity, the only Diagnostic Codes which may avail the Veteran are 8520, 8620 and 8720, dealing with incomplete paralysis of the sciatic nerve due to neuritis or neuralgia. As per Diagnostic Code 8520, a 40 percent evaluation is assignable for moderately severe incomplete paralysis and a 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. See 38 C.F.R. § 4.124a, Diagnostic Code 8520, 8620 and 8720. However, as noted above, the competent medical and other evidence of record reflects that the Veteran's sciatic nerve disturbance is secondary to his nonservice-connected lumbar radiculopathy rather than his service-connected peripheral neuropathy of the lower extremities. Accordingly, the provisions of Diagnostic Codes 8520, 8620 and 8720 are not for application. See Mittleider, supra. Extraschedular Considerations The Board has also considered an extraschedular evaluation. The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The Board notes that the Veteran's representative asserts that the schedular criteria are inadequate for evaluating the Veteran's service-connected disabilities decided herein. The Board disagrees. As fully detailed above, higher evaluations are available where specific criteria are met. The Veteran does not meet the schedular criteria for higher evaluations. It does not appear that the Veteran has "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluations for his level of impairment. In other words, he does not have any symptoms from his service-connected disabilities that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for these service-connected disabilities are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. ORDER Entitlement to a 30 percent evaluation, but no more, for service-connected peripheral neuropathy of the left lower extremity, is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a 30 percent evaluation, but no more, for service-connected peripheral neuropathy of the right lower extremity, is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND Unfortunately, a remand is required concerning the claims enumerated below. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. The left ulnar nerve claims As noted in the Introduction, the RO has created staged ratings concerning the Veteran's service-connected left ulnar nerve disability. After review of the competent medical and other evidence of record, the Board concludes that further clarification is necessary for proper adjudication of the Veteran's claim. While it is uncontroverted that the Veteran has been diagnosed with left ulnar neuropathy secondary to his service-connected diabetes mellitus, type II, the Board observes that a private nerve conduction study dated in September 2003 was indicative of moderately severe bilateral carpal tunnel syndrome. Indeed, the Veteran underwent left carpal tunnel release surgery in October 2003. Further, the September 2008 VA examination report reflects that the Veteran experiences neurological symptomatology involving the left median nerve. The Veteran is not service connected for left carpal tunnel syndrome or a left median nerve condition. As noted above, the Court has held that, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider and Mitchem, both supra. The competent medical evidence of record alludes to the Veteran's previously-diagnosed left carpal tunnel syndrome, release surgery, and median nerve impairment, but fails to differentiate as to whether the Veteran's neurological symptomatology of the left arm is associated with his service-connected left ulnar nerve condition or his nonservice-connected left carpal tunnel syndrome and/or median nerve impairment. In light of the inconsistent medical evidence concerning symptomatology associated with the Veteran's nonservice-connected left carpal tunnel syndrome and left median nerve impairment and the Court's holding in Mittleider, the Board concludes that further examination and clarification is necessary. The right upper extremity claim The Veteran has asserted a claim for service connection of a neurological condition of the right arm, claimed as secondary to service-connected diabetes mellitus, type II. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2010); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a) (2010). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, it is uncontroverted that the Veteran has been diagnosed with left median and ulnar nerve neuropathy and service connection is in effect for diabetes mellitus, type II. See e.g., the September 2008 and September 2009 VA examination reports. Accordingly, Wallin elements (1) and (2) are met. Concerning Wallin element (3), medical nexus evidence establishing a connection between the service-connected disability and the current disability, the Board concludes that the only medical nexus opinions addressing this claim are inadequate. See Barr, supra. Specifically, the September 2008 VA examination examiner stated the Veteran's right arm neuropathy pre-existed his diabetes mellitus, type II, yet she was unable to determine whether the Veteran's right median neuropathy progressed in severity due to his service-connected diabetes mellitus, type II, without resort to mere speculation. Further, while the September 2009 VA examiner stated that the Veteran's left ulnar nerve neuropathy was neither caused nor aggravated by his service-connected diabetes mellitus, type II, he failed to address whether the Veteran's left median neuropathy was caused or aggravated by his service-connected diabetes mellitus, type II. Concerning the September 2008 VA examiner's opinion, the Court recently held that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As the Court noted in Jones: An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However, a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. For example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim. This does not mean that a medical examiner must provide a conclusive opinion. The Court further noted in Jones that there are instances where an inconclusive medical opinion is legitimate: Even when a VA medical examiner has obtained and considered all relevant and available information, there will nevertheless be instances in which the examiner is still unable to furnish the requested opinion. There are limits to even the most current medical knowledge. In certain cases, no medical expert can assess the likelihood that a condition was due to an in-service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed. Similarly, the valid application of current medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a Veteran's disability, such that a physician could only speculate as to the cause of a claimant's disability or condition. Here, unfortunately, the basis for the medical opinion is not clear. Further, the Board notes that the September 2008 VA examiner failed to address the matter of aggravation as per the Court's holding in Allen. As such, additional clarifying opinion is required. The acquired psychiatric disorder claim The Veteran has claimed that his diagnosed acquired psychiatric disorder, to include major depressive disorder and adjustment disorder with depressed mood, is secondary to his service-connect diabetes mellitus, type II. See the Veteran's April 2008 claim. The Board notes that the Veteran has been diagnosed with major depressive disorder and adjustment disorder with depressed mood, and service connection has been awarded for diabetes mellitus, type II. Accordingly, Wallin elements (1) and (2) have been demonstrated. Concerning Wallin element (3), medical nexus evidence establishing a connection between the service-connected disability and the current disability, the Board concludes that the only medical nexus opinion addressing this claim is inadequate. See Barr, supra. Specifically, the September 2008 VA examiner stated that the severity of the Veteran's diagnosed acquired psychiatric disorders was due to the natural progression of the conditions and nonservice-connected factors rather than his service-connected disabilities, to include diabetes mellitus, type II. Essentially, this opinion only addresses the matter of aggravation as per the Court's decision in Allen. However, this opinion fails to address whether the Veteran's acquired psychiatric disorders were caused by his service-connected diabetes mellitus, type II. See 38 C.F.R. § 3.310. Accordingly, a remand is necessary to obtain an adequate opinion addressing these matters. The TDIU claim Finally, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2010). While the Board is cognizant that the claims remanded herein may affect the Veteran's combined evaluation, if granted, the Veteran has nonetheless met the criteria for a schedular TDIU. Specifically, the Veteran's combined evaluation is 70 percent from April 29, 2008. See the combined ratings table within 38 C.F.R. § 4.25 (2010). However, the medical opinions of record concerning whether the Veteran's service-connected disabilities, alone or in concert, render him unable to secure or follow a substantially gainful occupation are inadequate. Specifically, the September 2008 VA examiner opined that the Veteran's service-connected disabilities "would have minimal impact on most occupations." However, the most recent VA examination report reflects the August 2010 VA examiner's opinion that: "The compilation of all of the above problems, which are worsening since last evaluated in [September 2008], has contributed to [the Veteran's] unemployability status. He has little capabilities of performing his own activities of daily living around his own home or mobility around his own home more less hold down even a sedentary job." See the August 2010 VA examination report. While this opinion is clearly favorable to the Veteran's TDIU claim, the statement lacks the specificity to satisfy the criteria necessary to substantiate a TDIU claim as per 38 C.F.R. § 4.16(a). While the opinion discusses the Veteran's "unemployability" and alludes to his inability to "hold down even a sedentary job", the opinion fails to address whether or not the Veteran's service-connected disabilities, alone or in concert with one another, render him unable to secure or follow a substantially gainful occupation. Moreover, the Board observes that the August 2010 VA examination report provides a diagnosis of left ulnar neuropathy. As noted above, the August 2010 VA examiner's opinion specifically states that the "compilation of the above problems" affects the Veteran's unemployability. As such, the VA examiner's opinion improperly considered the Veteran's nonservice-connected left ulnar nerve neuropathy; and thus, the opinion is inadequate. See Barr, supra. In light of above, the Board concludes that a remand is necessary to obtain an adequate opinion concerning the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must schedule the Veteran for a VA peripheral nerves examination with an appropriate VA medical professional. The Veteran's complete VA claims file, as well as a copy of this Remand, must be reviewed by the VA examiner. The VA examination report must reflect that the VA examiner has reviewed this Veteran's complete VA claims file. After a review of the Veteran's VA claims file and a thorough examination of the Veteran, to include any necessary testing (a nerve conduction study (NCS) and/or an electromyography (EMG) test), the VA examiner should comment on the following: a. Describe the severity of the symptomatology associated with the Veteran's service-connected left ulnar neuropathy. The VA examiner must attempt to differentiate, to the extent possible, whether any identified neurological deficit of the left upper extremity is the result of the Veteran's service-connected left ulnar neuropathy as opposed to his nonservice-connected left carpal tunnel syndrome. If the VA examiner is unable to differentiate between the symptomatology attributable to these two disorders, he/she must specifically state why this is so. b. Identify any neurological disorder(s) concerning the Veteran's right upper extremity. c. For any diagnosed neurological disorder of the Veteran's right upper extremity, the VA examiner must state whether each is at least as likely as not (i.e., meaning likelihood greater of 50% or greater) caused or aggravated by his service-connected diabetes mellitus, type II. The examiner is reminded that the matter of aggravation must be specifically addressed. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is requested to provide a thorough rationale for any opinion provided, as a matter of medical probability, based on his or her clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary. If the examiner cannot provide any requested opinion without resort to mere speculation, the specifics reasons for such should be stated. 2. The RO/AMC should schedule the Veteran for a VA psychiatric examination with an appropriate VA medical professional. The Veteran's complete VA claims file should be available to and reviewed by the VA examiner prior to the examination. Such review should be noted in the VA examination report. After a complete review of the Veteran's VA claims file, an interview and examination of the Veteran, to include any testing deemed necessary, the VA examiner should address the following: a. Provide a diagnosis (or diagnoses) for any and all identified acquired psychiatric disorder(s). b. For each diagnosed acquired psychiatric disorder, is it at least as likely as not (i.e., meaning likelihood greater of 50% or greater) that such is caused or aggravated by his service-connected diabetes mellitus, type II. The examiner is reminded that the matter of aggravation must be specifically addressed. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is requested to provide a thorough rationale for any opinion provided, as a matter of medical probability, based on his or her clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary. If the examiner cannot provide any requested opinion without resort to mere speculation, the specifics reasons for such should be stated. 3. After a completion of the requested examinations listed above, the RO/AMC should schedule the Veteran for an appropriate VA medical examination. The Veteran's complete VA claims file, to include a copy of this Remand AND the VA examination requested above, should be available to and reviewed by the VA examiner prior to the examination. Such review should be noted in the VA examination report. After a complete review of the Veteran's VA claims file, an interview and physical examination of the Veteran, to include any testing deemed necessary, the VA examiner opine as to whether it is as likely as not (i.e., meaning likelihood greater of 50% or greater) that the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The rationale for any opinion must be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is requested to provide a thorough rationale for any opinion provided, as a matter of medical probability, based on his or her clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary. If the examiner cannot provide any requested opinion without resort to mere speculation, the specifics reasons for such should be stated. 4. The RO/AMC should then readjudicate the claims in light of all of the evidence of record on the merits. If any of the claims are not granted to the fullest extent, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised that failure to appear for VA examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (2010). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010). Department of Veterans Affairs