Citation Nr: 1304355 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-11 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an evaluation in excess of 20 percent for diabetes mellitus with peripheral neuropathy in the lower extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). In pertinent part of that rating decision, the RO denied the benefit sought on appeal. The Board is cognizant that a claim for increased evaluation includes a claim for a finding of TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although a freestanding claim for TDIU was previously denied in a May 2006 and in a May 2010 rating decisions and neither rating decision was appealed, the Veteran has again raised the issue in the context of his claims for increased evaluation in an October 2010 VA Form 21-527, Income Net Worth and Employment Statement. The Veteran stated that he was no longer able to work, in part, because of diabetes mellitus disability. The Board notes, however, that a 100 percent combined schedular rating has been granted, effective June 10, 2010. Although this rating does not preclude a simultaneous TDIU rating, the Veteran is already in receipt of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) effective from June 10, 2010. See, e.g., Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (a TDIU rating could serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in § 1114(s)). The issue of TDIU is not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's service-connected diabetes mellitus is currently evaluated as 20 percent disabling. The Veteran requests an increased rating. After a thorough review of the claims folder, unfortunately, the Board finds that a remand for additional development is necessary prior to adjudication of the claim. The Veteran's diabetes mellitus has been rated as 20 percent disabling under Diagnostic Code 7913. See 38 C.F.R. § 4.119. Note (1) to Diagnostic Code 7913 directs adjudicators to evaluate compensable complications of diabetes 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 this diagnostic code. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran was physically examined by VA in regard to his diabetes mellitus disability in December 2007, October 2009, and July 2012. All of these VA examination reports show diagnoses of hypertension, erectile dysfunction, and peripheral neuropathy in the lower extremities. In pertinent part, the December 2007 VA examiner found that the Veteran's hypertension was not related to his diabetes mellitus. However, both the October 2009 and July 2012 VA examiners found that the Veteran's hypertension was permanently worsened by his diabetes mellitus disability. Neither examiner provided a statement regarding the baseline level of severity of the hypertension before the onset of aggravation. Nor do any of the VA examination reports contain sufficient information in which to evaluate his hypertension on the appropriate diagnostic code. Both the December 2007 and July 2012 VA examiners found that the Veteran had erectile dysfunction as secondary to his diabetes mellitus disability; however, the medical evidence shows that the Veteran reported an onset of his erectile dysfunction almost twenty years prior to his diagnosis of diabetes mellitus. Also, both the December 2007 and October 2009 VA examiners found that the Veteran had peripheral neuropathy in his lower extremities as secondary to his diabetes mellitus; however, neither examiner evaluated the severity of his symptomatology due to that bilateral condition. Moreover, the July 2012 VA examiner did not indicate whether the Veteran had a diagnosis of peripheral neuropathy in either of his lower extremity as secondary to his diabetes mellitus. In short, it is unclear from the current medical evidence of record whether the Veteran has complications of his diabetes, to include erectile dysfunction, hypertension, and peripheral neuropathy in the lower extremities that warrant separate compensable evaluations as directed by Note (1) to Diagnostic Code 7913. Normally, the Board refer issues of secondary service-connection that are raised by the record but have not yet been adjudicated to the Agency of Original Jurisdiction (AOJ). However, in light of the instructions under Note (1) to Diagnostic Code to provide separate compensable evaluations for complications of diabetes mellitus, the Board finds that these matters are part and parcel of the increased rating claim on appeal. Thus, the appeal must remand for another VA examination as the nature and severity of the diabetic complications cannot presently be determined from the evidence of record. A new VA examination is needed to evaluate the severity of the Veteran's diabetes mellitus, and to identify and evaluate any complications of diabetes mellitus, to include erectile dysfunction, hypertension, and peripheral neuropathy in the lower extremities. Thereafter, the RO/AMC must determine whether the findings warrant assignment of a separate compensable evaluation for such diabetic complication. Prior to any examination, the RO/AMC should obtain any outstanding records of pertinent VA and private treatment with the Veteran's assistance. In particular, the Board notes that the Veteran's records obtained from Social Security Administration show that the Veteran sought treatment for complications for his diabetes mellitus in May 2007 from Parkview Hospital. No attempt by VA has been made to ensure that all those private treatment records have been associated with the claims folder. Also, it does not appear that the Veteran's VA treatment records in the claims folder have been updated since September 2010. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain all treatment records relating to the Veteran's private treatment at Parkview Hospital in May 2007. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's treatment from VA medical facilities from September 2010 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Arrange for the Veteran to undergo VA examinations, by appropriate physicians, for evaluation of his diabetes mellitus and to determine the severity of any complications of his diabetes mellitus, to include of erectile dysfunction, hypertension, and peripheral neuropathy. The entire claims file, to include a complete copy of this REMAND, must be made available to each physician designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all findings made available to the requesting physician prior to the completion n of his or her report), and all clinical findings should be reported in detail. If the examiner deems an EMG to be necessary to determine if the Veteran has peripheral neuropathy, than such testing should be completed. After examining the Veteran and completing any necessary testing, reviewing his pertinent medical history and any competent lay statements regarding observable symptomatology, the examiner must determine the current nature and severity of the Veteran's service-connected diabetes. The examiner must also identify whether there are any current diagnosed complications to the Veteran's diabetes mellitus disability, to include of erectile dysfunction, hypertension, and peripheral neuropathy, and identify nature and severity of the symptomatology associated with those complications. Any neurologic impairment should be assessed as mild, moderate, or severe. If such diagnoses are not found to be due to diabetes mellitus, but are found to have been permanently aggravated by diabetes mellitus, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the diagnosed complication before the onset of aggravation. A complete rationale must be provided for all opinions and conclusions rendered. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue for an increased rating for diabetes mellitus, to include consideration of separate compensable evaluation for complications from diabetes mellitus. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MICHAEL LANE 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) (2012).