Citation Nr: 1305253 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-19 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for Type I insulin dependent diabetes mellitus, with erectile dysfunction, nephropathy, and retinopathy. 2. Entitlement to an evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to May 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In this decision, the RO continued the 40 percent rating then in effect for the Veteran's service-connected Type I insulin dependent diabetes mellitus, with erectile dysfunction, nephropathy, and retinopathy, and peripheral neuropathy of the lower extremities. In June 2012, the Pittsburgh, Pennsylvania RO (under which jurisdiction this appeal currently presides) assigned individual separate ratings (20 percent) for the service-connected peripheral neuropathy of the left and right lower extremities. A video conference hearing was held before the undersigned Veterans Law Judge in October 2012. A transcript of this hearing has been associated with the Veteran's claims folder. The record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disabilities. The issue of entitlement to TDIU rating is part of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. 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 In the course of his October 2012 hearing conducted by the undersigned, the Veteran testified that he was not working as a result of his "diabetes and related complications." See page 21 of transcript. A TDIU rating may be granted upon a showing that the 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. Moreover, a TDIU claim is part of an increased rating claim when such claim is raised by the record. The TDIU claim is considered to have been raised by the record, is a component of the instant claim, and the Board has jurisdiction over this issue. Rice, 22 Vet. App. at 447. However, because the record does not include an opinion as to whether the service-connected disabilities render the Veteran unemployable, the issue must be remanded. Friscia v. Brown, 7 Vet. App. 294 (1994). Current VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). At the October 2012 hearing, the Veteran testified that he had been admitted into the Wilkes-Barre VA Medical Center (VAMC) in 2010 for ketoacidosis. See page three of transcript. The most recent VA medical records located within the Veteran's claims folder are dated in October 2009. Review of VA outpatient medical records in Virtual VA (an electronic paperless claims processing system) shows outpatient records from the VAMC in Pittsburgh, dated from August 2010 to March 2012. The Veteran also testified that he had an upcoming appointment with VA scheduled to occur on October 19, 2012. See page 25 of transcript. The Veteran also informed VA in September 2010 that he had been treated at the Bath, New York; Wilkes-Barre, Pennsylvania; and Pittsburgh, Pennsylvania medical facilities. See VA Form 21-4138. Review of a recent VA examination report (see Diabetes Mellitus Disability Benefits Questionnaire "DBQ"), dated in June 2012, shows that the examiner reported that the Veteran's Type I diabetes mellitus was managed by restricted diet, the use of insulin, and the regulation of activities. The examiner also checked the box indicating that the Veteran had "3 or more" episodes of hypoglycemia "requiring hospitalization" over the past 12 months. Such findings, which may equate to a level of severity to warrant the assignment of a 60 percent disability rating, are not shown to be supported by the record. Medical records associated with these cited three or more hospitalizations required for episodes of hypoglycemia are not currently on file. Lastly, the Veteran submitted additional medical evidence that was received at the Board in December 2012, after the record had been held open for a period following the October 2012 hearing. The medical evidence is not accompanied by a specific waiver of consideration by the agency of original jurisdiction; however, as the case is being remanded, the recently submitted evidence should be reviewed by the AMC/RO. See 38 C.F.R. §§ 19.37(b), 20.1304(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran and his representative with appropriate notice regarding the TDIU claim. 2. The RO/AMC should obtain copies of records of relevant VA or private treatment records not of record. These should include, but not be limited to all VA medical records - not yet having been associated with the Veteran's claims folder (or within Virtual VA) from the medical facilities located in Bath, New York; Wilkes-Barre, Pennsylvania; and Pittsburgh, Pennsylvania. Associate all such available records with the claims folder. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and severity of all current manifestations of the Veteran's service-connected Type I diabetes mellitus and the impact of the service-connected disabilities on employability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should specifically indicate whether the diabetes mellitus results in episodes of ketoacidosis or hypoglycemic reactions, and, if so, the frequency of hospitalizations that result therefrom. The examiner should also specify whether the diabetes mellitus results in progressive loss of weight and strength. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected peripheral neuropathy of the left and right lower extremities. For each lower extremity, the examiner should: Identify the affected nerve(s), and Specifically indicate whether neuritis, neuralgia, complete paralysis, or incomplete paralysis is present. If any of the above is present, then, for each affected nerve, the examiner should indicate the severity by analogy to incomplete paralysis, i.e., mild, moderate, moderately severe, or severe incomplete paralysis. Based on the examination and review of the record, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, (diabetes mellitus, with erectile dysfunction, nephropathy and retinopathy, evaluated as 40 percent disabling; peripheral neuropathy of both lower extremities, each evaluated as 20 percent disabling) either singly or taken together, without regard to any non service-connected disabilities or his age, render him unable to secure and follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completion of the foregoing, the RO/AMC should adjudicate the issues on appeal, included the claim for entitlement to TDIU. In adjudicating these matters, the RO/AMC must review all evidence associated with the record, including that associated with the record subsequent to the issuance of July 2012 supplemental statement of the case (SSOC). If in any respect the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond. The appellant 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 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). _________________________________________________ M. E. LARKIN 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).