Citation Nr: 1125576	
Decision Date: 07/07/11    Archive Date: 07/15/11

DOCKET NO.  10-17 463	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 50 percent for post traumatic stress disorder (PTSD). 

2.  Entitlement to a total disability rating based on individual unemployability due to  service-connected disabilities (TDIU). 

3.  Entitlement to an increased compensable disability rating for hypertension.

4.  Entitlement to an increased disability rating for diabetes mellitus, currently evaluated as 20 percent disabling. 

5.  Entitlement to an increased disability rating for peripheral neuropathy of the left (minor) hand, currently evaluated as 10 percent disabling. 

6.  Entitlement to an increased disability rating for peripheral neuropathy of the right (major) hand, currently evaluated as 10 percent disabling.  


REPRESENTATION

Veteran represented by:  Joseph R. Moore, Attorney at law


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran had active military service from September 1967 to September 1970. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia.  By that rating decision, the RO implemented a March 2009 Board decision that awarded service connection for PTSD; an initial 50 percent rating was assigned, effective May 2, 2005--the date VA received the Veteran's initial claim for VA compensation for the above-cited disability.  The Veteran appealed the RO's assignment of an initial 50 percent disability rating assigned to the service-connected PTSD to the Board.

This appeal also stems from an October 2009 rating action, wherein the RO continued noncompensable, 20 and 10 percent disability ratings assigned to the service-connected hypertension, diabetes mellitus and peripheral neuropathy of the left hand, respectively.  By that rating action, the RO assigned an initial 10 percent disability rating to the service-connected peripheral neuropathy of the right hand, effective May 6, 2009--the date VA received the Veteran's claim for increased compensation for the above-cited service-connected disability.  The Veteran appealed the RO's October 2009 rating action to the Board. 

In a February 2011 written argument to the Board, the Veteran's attorney waived initial RO consideration of VA treatment records submitted in support of the initial and increased evaluation claims on appeal.  Thus, a remand is not necessary in this instance.  38 C.F.R. § 20.1304 (2010). 

The issues of entitlement to an increased compensable disability rating for hypertension, entitlement to an increased disability rating for diabetes mellitus, evaluated as 20 percent disabling, and entitlement to an increased disability ratings in excess of 10 percent for peripheral neuropathy of the left and right hands are addressed in the REMAND portion of the decision below and are REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  From the date of receipt of the Veteran's claim for service connection for PTSD on May 2, 2005 to the present, the competent evidence of record shows that it has been productive of occupational impairment with occasional visual hallucinations and suicidal ideation, but without evidence of total occupational and social impairment.

2.  The Veteran's service-connected disabilities, notably his PTSD, preclude him from securing and following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  From May 2, 2005, the criteria for an initial 70 percent disability rating for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010).

2.  The criteria for entitlement to TDIU have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim.  The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide.  Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  See, also, the United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004).

In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required.

The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  Id.

The Board finds that the claim for an initial evaluation for PTSD decided herein, arose from the Veteran's disagreement with the RO's assignment of an initial 50 percent disability rating assigned after the grant of service connection for PTSD. (See June 2009 rating action).



The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003.

The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).

In this case, the above-cited initial evaluation claim was substantiated after the enactment of the VCAA, and the Veteran has not alleged any prejudice by any notice defect.  The Board notes that the United States Court of Appeals for Veteran s Claims (Court), in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009) clarified VA's notice obligations in increased rating claims. As the instant appeal stems from the grant of initial compensation benefits for PTSD, as opposed to an increased rating claim, Vazquez- Flores is inapplicable.  Id.

Regarding VA's duty to assist the Veteran with his initial evaluation claim on appeal, service treatment records and private and VA post-service medical records are contained in the claims files.  In addition, statements of the Veteran and his attorney have been associated with the claims files.

The Veteran was afforded a VA examination in conjunction with his initial evaluation claim in January 2010.  A copy of that examination report is contained in the claims file.

Regarding the claim of entitlement to TDIU, in light of the favorable action taken on the claim in this decision, the Board finds that further discussion of VCAA compliance is not warranted at this time.


II.  Laws and Regulations 

(i) Initial rating criteria-general

disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In cases 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).

In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as in the Veteran's claim for an initial disability rating in excess of 50 percent for PTSD, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal.  See generally Fenderson v. West, 12 Vet. App. 119 (1999).

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.  See 38 C.F.R. § 4.7 (2010).

(ii) PTSD rating criteria

The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities.  See 38 C.F.R. § 4.130 (2010).  Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).

Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent disability evaluation encompasses PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability evaluation is warranted for PTSD manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships.  Id.

A 100 percent disability evaluation is warranted for PTSD which is productive of total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name.  Id. 

A Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV)).

Scores ranging from 51 to 60 reflect that the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning.  GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  Id. 

III. Merits Analysis

(i) PTSD claim

The Board finds that the competent evidence of record supports an award of an initial 70 percent disability rating for PTSD from the date VA received his initial claim for compensation for this disability on May 2, 2005.  In support of the Veteran's appeal, are the reports of two private examiners, both of whom uniformly concluded, after an extensive and exhaustive review of the claims files, that while the Veteran had initially stopped working in 1996 due to physical disabilities (i.e., back disorder), he had been unemployable since 1995 due to his PTSD symptoms, such as auditory and visual hallucinations, social isolation, and intrusive thoughts.  (See April and December 2009 reports, prepared by Martin H. Stein, M. D. and Michael L. Cesta, M. D., respectively).  Dr. Cesta, who in addition to reviewing the claims files also performed a mental status evaluation of the Veteran, concluded that the degree of the Veteran's disability had nothing to do with his co-morbid medical diagnoses or other previous diagnoses, which were clearly secondary to his development of PTSD, and that the signs and symptoms that had caused him to become disabled were exclusively associated with his PTSD. (See December 2009 report, prepared by Michael L. Cesta, MD, page (pg.) four (4)).  

The above-cited private examiner's conclusions are supported by VA treatment records, dated in October 2005, reflecting that the Veteran had experienced hallucinations "at times" and that he saw bugs and shadows out of the corners of his eyes.  (See VA treatment records, dated in early and mid-October 2005).  These same reports show that the Veteran had contemplated suicide by overdosing on pills.  (See VA treatment record, dated in late October 2005).  While previous and subsequent VA treatment records, dated in from 2005 to 2010, show that the Veteran had been assigned GAF scores of 50-51, scores that are indicative of moderate to serious social and occupational impairment, a VA physician, who had treated the Veteran on previous occasions for his PTSD, concluded that the Veteran could not work in any gainful employment.  (See January 2006 and March 2009 VA treatment reports).  

The Board notes that March 2009 VA examiner's conclusion is undermined by a January 2010 VA examiner's conclusion that the Veteran's PTSD had resulted in "[s]ome decrease in work efficiency with an intermittent inability to perform occupational due to sign and symptoms but generally satisfactory functioning include routine behavior, self care and conversation," a statement that is commensurate with a 30 percent disability rating.  However, this same VA examiner also indicated that the Veteran's social isolation had worsened since the onset of the Iraq War and that his PTSD had affected him socially as well as industrially.  (See January 2010 VA PTSD examination report).  In fact, when seen at a VA clinic in August 2010, the Veteran reported that while he still attended church, he was not involved in any activities.  

In reviewing this evidence as a whole, the Board finds that the competent evidence of record shows that the Veteran's PTSD has precluded him from securing or following a substantially gainful occupation.  This finding is sufficient to warrant an initial 70 percent disability rating in light of occupational impairment and work deficiencies.  The Board would point out, however, that there is no finding that the Veteran, while exhibiting occasional visual hallucinations and suicidal ideation in October 2005, had total social impairment due to PTSD, bearing in mind that a 100 percent evaluation requires total occupational and social impairment.  Moreover, aside from isolated auditory hallucinations and suicidal ideation in October 2005, the Veteran also has not exhibited any of the other objective symptoms listed in the criteria for a 100 percent evaluation, specifically persistent (italics added for emphasis) delusions or hallucinations.  Rather, he is far more appropriately evaluated at the 70 percent rate..  Given the consistency of the findings as to severity during the pendency of this appeal, there is no basis for "staging" this evaluation pursuant to Fenderson.

Finally, the Veteran has submitted no evidence showing that his PTSD has markedly interfered with his employment status beyond that interference contemplated by the assigned 70 percent disability rating, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal.  As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1)(2010), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008).

(ii) TDIU claim

The Veteran appealed an October 2009 rating action, wherein the RO, in part, denied entitlement to TDIU. 

Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a Veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

Furthermore, a total disability rating may be assigned where the combined rating for the Veteran's service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone.  See 38 C.F.R. § 4.16(b).

The Veteran's service-connected disabilities, other than PTSD, include diabetes mellitus (evaluated as 20 percent disabling);  peripheral neuropathy of the left hand (evaluated as 10 percent disabling); peripheral neuropathy of the right hand (evaluated as 10 percent disabling); and hypertension(evaluated as noncomepnsably disabling).  

Here, in view of the Board's award of an initial 70 percent rating for the Veteran's service-connected PTSD in the analysis above, the Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a).  Since the schedular criteria are satisfied, the remaining question is whether the Veteran's service-connected disabilities, in and of themselves, preclude him from securing or following a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).

In this case, the Board has determined that the initial 70 percent evaluation awarded to his PTSD in the analysis above was predicated on occupational impairment.  The award was based, in part, on the reports of two private examiners, both of whom uniformly concluded, after an extensive and exhaustive review of the claims files, that while the Veteran had initially stopped working in 1996 due to physical disabilities (i.e., back disorder), he had been unemployable since 1995 due to his PTSD symptoms, such as auditory and visual hallucinations, social isolation, and intrusive thoughts.  (See April and December 2009 reports, prepared by Martin H. Stein, M. D. and Michael L. Cesta, M. D., respectively).  Dr. Cesta, who in addition to reviewing the claims files also performed a mental status evaluation of the Veteran, concluded that the degree of the Veteran's disability had nothing to do with his co-morbid medical diagnoses or other previous diagnoses, which were clearly secondary to his development of PTSD, and that the signs and symptoms that had caused him to become disabled were exclusively associated with his PTSD. (See December 2009 report, prepared by Michael L. Cesta, MD, page (pg.) four (4)).  

Overall, the Board finds the competent evidence of record, as noted above, shows that the Veteran's service-connected disabilities, notably his PTSD, preclude him from following a substantially gainful occupation.  As such, the claim of entitlement to TDIU is granted.


ORDER

As of May 2, 2005, a 70 percent disability rating is granted for PTSD, subject to the laws and regulations governing the payment of monetary benefits.

TDIU is granted, subject to the regulations governing the payment of VA monetary benefits.


REMAND

The Board finds that additional procedural development is warranted prior to further appellate review of the issues of entitlement to an increased compensable disability rating for hypertension; entitlement to an increased disability rating for diabetes mellitus, currently evaluated as 20 percent disabling; entitlement to an increased disability rating for peripheral neuropathy of the left hand, currently evaluated as 10 percent disabling; and entitlement to an increased disability rating for peripheral neuropathy of the right hand, currently evaluated as 10 percent disabling.
As noted in the decision above, the VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159.  The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, an error in failing to afford a preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication.  See Mayfield v. Nicholson, 499 F.3d at 1323-24; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004).

The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision.  38 C.F.R. § 3.159.  For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2).  

Here, the Veteran has not been provided specific VCAA notice concerning the issues of entitlement to an increased compensable disability rating for hypertension; entitlement to an increased disability rating for diabetes mellitus, currently evaluated as 20 percent disabling; entitlement to an increased disability rating for peripheral neuropathy of the left hand, currently evaluated as 10 percent disabling; and entitlement to an increased disability rating for peripheral neuropathy of the right hand, currently evaluated as 10 percent disabling.  The Board finds such notice must be provided to the Veteran on remand.  (Parenthetically, the Board observes that a May 2008 VCAA notice letter that addressed the above-cited increased evaluation issues was not sent to the Veteran during the current appeal period).  

With respect to increased rating claims, the United States Court of Appeals for Veterans Claims (Court) held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim:  (1) the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008).

The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009).  The generic first, third, and fourth elements (contained in the Veteran's Court's decision) were not disturbed by the Federal Circuit's decision.  

The Veteran has not been given notice required by Vazquez- Flores, Id., or of how VA determines the degree of disability and effective date of disability in compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006).  This should also be accomplished on remand. 

Finally, a review of the claims files reflects that the Veteran receives Social Security Administration (SSA) disability benefits because of a low back disorder.  The Court has held that where VA has notice that the Veteran is receiving disability benefits from SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based.  See Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996).  Also, in Tetro v. Gober, 14 Vet. App. 110 (2000), the Court held that VA has the duty to request information and pertinent records from other Federal agencies, when on notice that such information exists.  Because the Veteran's SSA records might contain evidence demonstrating an increase in severity of the Veteran's service-connected hypertension; diabetes mellitus, and peripheral neuropathy of the left and right hands, they should be obtained in connection with his increased evaluation claims for the above-cited disabilities.

Accordingly, the case is REMANDED to the RO/AMC for the following action:

1.  Provide the Veteran and his representative a letter that notifies him of the information and evidence required to substantiate the claims of entitlement to an increased compensable disability rating for hypertension; entitlement to an increased disability rating for diabetes mellitus, currently evaluated as 20 percent disabling; entitlement to an increased disability rating for peripheral neuropathy of the left hand, currently evaluated as 10 percent disabling; and entitlement to an increased disability rating for peripheral neuropathy of the right hand, currently In summary, the Board finds that the evidence supports a 1000 percent disability rating for the Veteran's PTSD, under Diagnostic Code 9411.  

The notice should also provide the information required by the holdings in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009) and Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

2.  The RO/AMC should contact the Social Security Administration and request copies of the administrative decision and all medical records considered in the Veteran's claim for SSA disability benefits (and any subsequent disability determination evaluations).  All records obtained should be associated with the claims folders.  If these records are not available, certification of such should be placed in the record.

3.  After completion of the above and any additional development deemed necessary, such as scheduling the Veteran for VA examinations by appropriate examiners to determine the current severity of the service-connected hypertension, diabetes mellitus and peripheral neuropathy of the left and right hands, the RO/AMC must readjudicate the increased evaluation claims on appeal.  If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs