Citation Nr: 1303089 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-16 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent disabling for type II diabetes mellitus with cataracts of both eyes and posterior vitreal detachment of the right eye. 2. Entitlement to an initial disability rating in excess of 10 percent disabling prior to January 5, 2010 for right upper extremity peripheral neuropathy with carpal tunnel syndrome associated with diabetes mellitus, and in excess of 30 percent disabling there from. 3. Entitlement to an initial disability rating in excess of 10 percent disabling prior to January 5, 2010 for left upper extremity peripheral neuropathy with carpal tunnel syndrome associated with diabetes mellitus, and in excess of 20 percent disabling there from. 4. Entitlement to an initial disability rating in excess of 10 percent disabling for right lower extremity peripheral neuropathy associated with diabetes mellitus. 5. Entitlement to an initial disability rating in excess of 10 percent disabling for left lower extremity peripheral neuropathy associated with diabetes mellitus. 6. Entitlement to an initial disability rating in excess of 30 percent disabling prior to January 5, 2010 for posttraumatic stress disorder (PTSD) with alcohol abuse, and in excess of 50 percent disabling there from. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In December 2011, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In an August 2010 notice of disagreement, the Veteran specifically expressed disagreement with the RO's August 2010 denial of a total disability rating based on individual unemployability (TDIU). In May 2012, the RO fully granted a TDIU; therefore, that issue is not in appellate status and is not before the Board. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The Board notes it appears from the record that the Veteran has submitted a notice of disagreement with regard to an October 2012 decision of the RO regarding the payment of agent fees. The record shows that in November 2012, the RO acknowledged receipt of the notice of disagreement and was administratively processing the matter. This matter is not currently before the Board and will not be further addressed as the record indicates that it is being processed by the RO. The issues of peripheral neuropathy of the right and left upper extremities, peripheral neuropathy of the right and left lower extremities, and PTSD 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. For the entire increased rating period, the preponderance of the evidence of record reflects that the Veteran's type II diabetes mellitus has required insulin use and restricted diet; it has not required regulation of activities. 2. For the entire increased rating period, the preponderance of the evidence reflects that the Veteran's diabetes mellitus has resulted in cataracts of both eyes and posterior vitreal detachment of the right eye manifested by uncorrected visual acuity of no worse than 20/40 in the right eye and 20/20 in the left eye; corrected distance visual acuity was no worse than 20/20-2 in the right eye and 20/20-3 in the left eye; corrected near visual acuity was 20/20, bilaterally. The Veteran's visual fields have been normal, bilaterally. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent disabling for the Veteran's service-connected type II diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 2. The schedular criteria for a separate, compensable rating for cataracts of both eyes and posterior vitreal detachment of the right eye associated with diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.79, Diagnostic Codes 6008, 6027, 6061-6066, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. An August 2009 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The August 2009 notice letter also informed the Veteran as to how disability ratings and effective dates are assigned. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including those utilized by the Social Security Administration (SSA) in a disability administration, have been secured. The RO arranged for VA examinations in August 2008, September 2009, and May 2010. These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Increased Rating for Type II Diabetes Mellitus Service connection for type II diabetes mellitus was granted by the RO in an October 2008 rating decision that assigned a 20 percent disability evaluation. The Veteran submitted a claim for an increased rating in August 2009. The rating was continued at 20 percent disabling in the October 2009 rating decision that gave rise to this appeal under the provisions of Diagnostic Code 7913 for diabetes mellitus. Diabetes mellitus is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Under Diagnostic Code 7913, a 20 percent rating is due where the disorder requires insulin and a restricted diet, or requires an oral hypoglycemic agent and a restricted diet. A 40 percent rating is due where the disorder requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted where the disorder requires insulin, a 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. A 100 percent rating is warranted where the disorder requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Note 1 of Diagnostic Code 7913 indicates that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Id. The definition of "regulation of activities" in the criteria for a 100 percent rating, i.e., "the avoidance of strenuous occupational and recreational activities," applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In addition, a 40 percent rating under Diagnostic Code 7913 requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho, 21 Vet. App. at 363-365. The relevant and most probative evidence of record consists of VA examinations of the Veteran's diabetes, which he underwent throughout the claim and appeal process, as well as VA treatment reports. In an August 2008 VA examination, approximately one year before the Veteran filed an informal claim for an increased rating of his service-connected diabetes mellitus, the Veteran indicated that his diabetes was treated with an oral medication, Metformin, and that he was on a low-carbohydrate, low-fat, and low-sugar diet. He had no history of hospitalization or restriction of activities due to hypoglycemia. He had weight loss of about ten pounds in the last year and complained of tiredness, fatigue, and loss of strength. However, he had no history of any visual complications, numbness, tingling, neuropathy, or skin rash. The Veteran also reported that he had no functional impairment due to diabetes. After a complete physical examination, the August 2008 VA examiner indicated that the Veteran had type II diabetes mellitus and was on oral medication with no complications at that time. In September 2009, the Veteran was afforded another VA examination of his diabetes mellitus. The examination report indicated that the Veteran was on insulin, atorvastatin, and sertraline, and began insulin treatment four months prior to the examination. The Veteran reported that he follows a strict 1,800-calorie diet; however, he had weight loss of 20 pounds in the past three months, which he did not want to lose. He sees his primary medical doctor every six months. He denied any hospitalizations for diabetes, denied diabetic ketoacidosis, and denied hypoglycemic episodes. He complained of anal pruritus and checked his sugar level only once a day at most. An October 2009 VA treatment report indicated that the Veteran was treated at the Diabetes Clinic. There, the treating health care professional counseled the Veteran on the importance of following a low carbohydrate, low cholesterol, and low sodium diet, maintaining regular activity with daily walks, controlling his weight, and meeting alcohol, blood glucose, blood pressure, and lipid targets in order to prevent/delay co-morbidities. In May 2010, the Veteran underwent another VA examination of his diabetes mellitus. At that time, the VA examiner indicated the Veteran's continued use of insulin, which she noted controlled his type II diabetes mellitus. The Veteran indicated that he was currently a nonsmoker and quit six years prior to the examination. He also reported drinking two to three beers per evening. Based on the above, the Board finds that a 40 percent disability rating is not warranted for the appeal period under Diagnostic Code 7913. During this period on appeal, the evidence clearly reflects that the Veteran's diabetes mellitus required insulin treatment and a restricted diet, specifically, a low carbohydrate, low cholesterol, and low sodium diet of 1,800 calories. However, with respect to the regulation of activities, Board does not find that this was required as a result of the Veteran's diabetes mellitus. In fact, the October 2009 VA treatment report reflected that the Veteran was instructed to maintain regular activity with daily walks and meet target health goals in order to avoid co-morbidities, providing evidence against the claim that his diabetes required the avoidance of strenuous occupational and recreational activities. The Veteran has argued that he is entitled to a 40 percent rating for his diabetes because his diabetes requires regulation of activities. During the December 2011 hearing before the undersigned, the Veteran testified that he had been required to regulate his activities due to his diabetes because the numbness in his extremities did not enable him to hold a hammer (as necessary in his occupation) or stand due to fatigue. See hearing transcript at 5. When asked if a doctor had told him to regulate his activities, he stated that no doctor had told him that and he regulated activities on his own because he couldn't do it. See hearing transcript at 17-18. As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). However, in Camacho, the Court held that VA's interpretation of Diagnostic Code 7913, requiring that, in order to meet the criterion of regulation of activities, a Veteran must show he is required to avoid strenuous occupational and recreational activity is not erroneous, and that "medical evidence is required to support this criterion of a 40 percent disability rating" for diabetes. Thus, Camacho indicates that lay assertions would generally not be enough to satisfy the regulation of activities criterion of the 40 percent rating. The Court has also noted, however, that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1376-77. Thus, the Veteran's testimony that that his diabetes required regulation of activities is competent, but must be weighed against the other evidence of record. The Board's review of the evidence reflects that there is no indication of physician prescribed regulation of activities in the VA treatment records referred to by the Veteran or elsewhere in the record. In fact, those records reflect that the VA health care providers specifically indicated that the Veteran's diabetes required insulin and restricted diet, as well as exercise, but did not recommend or require regulation of activities. Indeed, the August 2008 VA examiner noted that while the Veteran complained of tiredness, fatigue, and loss of strength, this did not result in restriction of activities. In short, the weight of the competent and credible medical evidence of record does not reflect that a physician has prescribed restriction or regulation of the Veteran's activities to treat the diabetes, specifically, avoiding strenuous occupational and recreational activities. See Camacho, 21 Vet. App. at 362. The Board acknowledges that the record reflects progressive weight loss and strength as reported by the Veteran during the August 2008 and September 2009 VA examinations. However, without sufficient evidence that his diabetes mellitus requires regulation of activities as defined in the rating criteria, a 40 percent (or higher) rating is not assignable even though other requirements have been met given the conjunctive nature of the rating criteria. See 38 C.F.R. § 4.119 (Diagnostic Code 7913); Camacho, at 366. Consequently, a rating in excess of 20 percent for diabetes mellitus is not warranted for any portion of the appeals period. The Board has considered the Veteran's service-connected diabetes mellitus under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, the Board notes that the Veteran was diagnosed with type II diabetes mellitus with cataracts of both eyes and posterior vitreal detachment of the right eye. As such, his eye disabilities may be separately evaluated under 38 C.F.R. § 4.79, Diagnostic Codes 6008 (detachment of retina), 6027 (cataracts of any type), 6061-6066 (impairment of central visual acuity), and 6080 (impairment of visual fields). Effective from December 10, 2008, VA amended the rating schedule for evaluating diseases of the eye. The Veteran's increased rating claim was filed in August 2009 and the amended criteria are for application under the circumstances of this case. Under the new Schedule for Rating Disabilities for Diseases of the Eye, eye disabilities rated under Diagnostic Codes 6000 to 6009 are evaluated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. 38 C.F.R. § 4.79, Diagnostic Code 6008. Under the General Rating Formula based on incapacitating episodes, the following ratings apply: a 10 percent rating is warranted for detachment of the retina with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the previous 12 months; a 20 percent rating is warranted for detachment of the retina with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the previous 12 months; a 40 percent rating is warranted for detachment of the retina with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the previous 12 months; and a 60 percent rating is warranted for detachment of the retina with incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. Id. A note to Diagnostic Code 6008 defines an incapacitating episode as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. As for visual impairment, a noncompensable rating is warranted for impairment of central visual acuity when the corrected visual acuity is 20/40 or better in both eyes and a 10 percent compensable rating is warranted when the corrected visual acuity is 20/50 in one eye and 20/40 or worse in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. In September 2009, the Veteran underwent a VA examination of the eyes. Upon examination, the Veteran's uncorrected distance visual acuity is 20/40+ in the right eye and 20/20+ in the left eye. His best corrected distance visual acuity was 20/20-2 in the right eye and 20/20-3 in the left eye. His best corrected near visual acuity was 20/20, bilaterally. His confrontation visual fields were full to finger counting, bilaterally. There was also no indication that the Veteran's posterior vitreal detachment of the right eye resulted in prescribed bed rest and treatment. In short, the Board finds the preponderance of the evidence does not support the grant of a separate, compensable rating for cataracts of both eyes or posterior vitreal detachment of the right eye based upon incapacitating episodes or visual impairment, including decreased visual acuity or visual field loss. As the Board finds that the Veteran's eye complications do not warrant a separate, compensable rating under the schedular criteria based upon incapacitating episodes, decreased visual acuity, or visual field loss, they are therefore considered a part of the diabetic process currently evaluated as 20 percent disabling under Diagnostic Code 7913. The Board finds no other applicable diagnostic codes which would warrant an increased evaluation of the Veteran's diabetes mellitus or separate compensable evaluations for associated symptoms. In this regard, the Veteran is already service connected for diabetes related disabilities including bilateral upper and lower extremity peripheral neuropathy. The record does not show, and the Veteran has not asserted, that there are any other complications of diabetes. The Board has considered the Veteran's lay assertions that his disability is worse than currently rated. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan, at 1331; Washington, at 368-69. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his diabetes. See Layno, at 465. He is not, however, competent to identify a specific level of disability of his diabetes according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's diabetes has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's diabetes is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether increased rating is warranted in this case. As noted, there is no evidence that the Veteran's diabetes has required regulation or restriction of activities at any time during the rating period on appeal. As indicated above, the Veteran testified that his extremity numbness affected his ability to hold a hammer and stand, and that he was fatigued, but did not specifically identify any regulation or restriction on his activities, such as avoiding strenuous occupational or recreational activities. Finally, the Board has reviewed all evidence of record and finds that a rating higher than 20 percent disabling is not warranted for any period of time on appeal. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. As such, the claim must be denied. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Extraschedular Consideration The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there is a higher rating available under the code - under Diagnostic Code 7913 - addressed in this decision. However, the Veteran's disability is not productive of the manifestations that would warrant the higher rating. The discussion above reflects that the symptoms of the Veteran's diabetes are fully contemplated by the applicable rating criteria. The Veteran's symptoms reflect that he requires insulin and a restricted diet, but not regulation of activities. Also, while the Board acknowledges the Veteran's testimony that his diabetes resulted in fatigue and weight gain, he also noted that these were side effects of his insulin medication, which is already contemplated in the schedular criteria. See hearing transcript at 5-6. As such, the available schedular evaluations for the service-connected type II diabetes mellitus at issue here are adequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. at 111. Also in this regard, the Veteran was awarded a TDIU in a May 2012 rating decision, effective October 1, 2009; therefore, while TDIU is a form of extraschedular rating (see 38 C.F.R. § 4.16 (2012)), the criteria are distinct from extraschedular rating for individual service-connected disabilities under 38 C.F.R. § 3.321(b). ORDER An increased rating in excess of 20 percent disabling for type II diabetes mellitus is denied. REMAND In an October 2009 rating decision, the RO granted service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, and assigned disability ratings of 10 percent for each extremity, effective from the date of claim (August 12, 2009). In the October 2009 rating decision, the RO also granted service connection for PTSD, and assigned a disability rating of 30 percent, effective from the date of claim (January 31, 2006). In a correspondence dated in December 2009, in response to the RO's October 2009 rating decision that granted service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and PTSD, the Veteran wrote that he "disagree[s] with all the adjudicative determinations" and "my notice of disagreement specifically covers all the determinations made by the regional office unless specifically excluded." By the December 2009 submission, the Veteran explicitly expressed disagreement with the RO's October 2009 rating decision regarding initial rating percentages for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and PTSD. The Board finds that the December 2009 correspondence constitutes a timely notice of disagreement with the RO's decision assigning an initial disability ratings of 10 percent for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, and an initial disability rating of 30 percent for PTSD. See 38 C.F.R. § 20.201 (2012) (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes a notice of disagreement, and special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (stating that VA has always been, and will continue to be, liberal, in determining what constitutes a notice of disagreement). Also, in a May 2012 rating decision, the RO increased the Veteran's right upper extremity peripheral neuropathy disability evaluation to 30 percent, left upper extremity peripheral neuropathy disability evaluation to 20 percent, and PTSD disability evaluation to 50 percent, all effective January 5, 2010. The Veteran was advised of the above grants of increased rating; however, he did not withdraw his appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, the Veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. From the record, it appears the RO has not yet issued a Statement of the Case (SOC) addressing the issues of higher disability ratings for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and PTSD. When a veteran has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Accordingly, the issues of higher disability ratings for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and PTSD, are remanded for issuance of an SOC. Accordingly, these issues are REMANDED for the following action: Issue the Veteran and representative an appropriate statement of the case addressing the issues of 1) Entitlement to an initial disability rating in excess of 10 percent disabling prior to January 5, 2010 for right upper extremity peripheral neuropathy with carpal tunnel syndrome associated with diabetes mellitus, and in excess of 30 percent disabling there from; 2) Entitlement to an initial disability rating in excess of 10 percent disabling prior to January 5, 2010 for left upper extremity peripheral neuropathy with carpal tunnel syndrome associated with diabetes mellitus, and in excess of 20 percent disabling there from; 3) Entitlement to an initial disability rating in excess of 10 percent disabling for right lower extremity peripheral neuropathy associated with diabetes mellitus; 4) Entitlement to an initial disability rating in excess of 10 percent disabling for left lower extremity peripheral neuropathy associated with diabetes mellitus; and 5) Entitlement to an initial disability rating in excess of 30 percent disabling prior to January 5, 2010 for PTSD with alcohol abuse, and in excess of 50 percent disabling there from. The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on these issues. Thereafter, these issues are to be returned to the Board only if an adequate and timely substantive appeal is filed. 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). This claim 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. 2012). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs