Citation Nr: 1314604 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-34 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for diabetes mellitus, type II. 2. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy, right upper extremity, associated with diabetes mellitus, type II. 3. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy, left upper extremity, associated with diabetes mellitus, type II. 4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy, right lower extremity, associated with diabetes mellitus, type II. 5. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy, left lower extremity, associated with diabetes mellitus, type II. 6. Entitlement to a compensable disability rating for impotence, associated with diabetes mellitus, type II. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2007 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue of entitlement to TDIU is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II, requires insulin, restricted diet, and regulation of activities; episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, are not shown. 2. The Veteran's peripheral neuropathy, right upper extremity associated with diabetes mellitus, type II, has been productive of neurologic impairment of the right upper extremity of no more than mild incomplete paralysis of the radial nerve; and is not productive of moderate incomplete paralysis, or worse symptoms, of the right upper extremity radial nerve. 3. The Veteran's peripheral neuropathy, left upper extremity associated with diabetes mellitus, type II, has been productive of neurologic impairment of the left upper extremity of no more than moderate incomplete paralysis of the radial nerve; and is not productive of severe incomplete paralysis, or worse symptoms, of the left upper extremity radial nerve. 4. The Veteran's peripheral neuropathy, left lower extremity associated with diabetes mellitus, type II, has been productive of neurologic impairment of the left lower extremity of no more than mild incomplete paralysis of the internal popliteal nerve (tibial); and is not productive of moderate incomplete paralysis, or worse symptoms, of the left lower extremity internal popliteal nerve. 5. The Veteran's peripheral neuropathy, right lower extremity associated with diabetes mellitus, type II, has been productive of neurologic impairment of the right lower extremity of no more than mild incomplete paralysis of the internal popliteal nerve (tibial); and is not productive of moderate incomplete paralysis, or worse symptoms, of the right lower extremity internal popliteal nerve. 6. During the pendency of his appeal, there is no evidence of any deformity of the Veteran's penis or loss of any part of the penis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.1119, Diagnostic Code 7913 (2012). 2. The criteria for an evaluation in excess of 20 percent for peripheral neuropathy, right upper extremity associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8514 (2012). 3. The criteria for an evaluation in excess of 20 percent for peripheral neuropathy, left upper extremity associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8544 (2012). 4. The criteria for an evaluation in excess of 10 percent for peripheral neuropathy, right lower extremity associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8524 (2012). 5. The criteria for an evaluation in excess of 10 percent for peripheral neuropathy, left lower extremity associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8524 (2012). 6. The criteria for a compensable disability rating for impotence, associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.31, Diagnostic Codes 7520, 7521, 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated in November 2006, November 2007, and July 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO informed the Veteran of the specific criteria to substantiate his claims for increased ratings. The claims were subsequently readjudicated, most recently in an November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Social Security Administration records including treatment records in their custody have been obtained. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in December 2006, November 2007, April 2010, July 2011, and October 2011, during the pendency of the claims. While the Veteran has contended that some examinations were not adequate, review of the record demonstrates that the examination reports of record contain sufficiently detailed findings for the Board to decide the claims for increased ratings on appeal. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Increased Ratings Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). If the criteria for a compensable rating under a diagnostic code are not met, then a noncompensable rating is awarded. 38 C.F.R. § 4.31 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue as here, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility that different ratings may be warranted for different time periods. The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Diabetes Mellitus The Veteran's service-connected diabetes mellitus, type II, has been rated under 38 C.F.R. § 4.119, Diagnostic Code 7913, the code for evaluation of diabetes mellitus. Under this code, a the current 40 percent rating is assigned if diabetes requires insulin, a restricted diet, and regulation of activities. See 38 C.F.R. § 4.119, Diagnostic Code 7913. A 60 percent rating is assigned if this condition 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 monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A 100 percent rating is assigned if this condition 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. Id. The following notes apply to 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1): 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 Diagnostic Code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. Id. Service connection is in effect for peripheral neuropathy of the upper and lower extremities, associated with diabetes mellitus. Each of the upper extremities is assigned a 20 percent rating under 38 C.F.R. § 4.124a, Diagnostic Codes 8514, and each of the lower extremities is assigned a 10 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8524. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The ratings for these compensable complications of diabetes are on appeal and each are separately evaluated pursuant to 38 C.F.R. § 4.124a. On a November 2007 VA examination, the examiner stated that there had been no problems with high or low blood sugar requiring hospital treatment. On average, the Veteran saw the doctor twice per month for diabetes. The Veteran's diabetes mellitus required insulin, restricted diet, and regulation of activities. The Veteran had essential hypertension that was not a complication of activities. There were no objective findings of eye, heart, skin, or renal problems associated with diabetes mellitus. On VA examination in April 2010, the Veteran reported no episodes of ketoacidosis requiring hospitalization, and no hospitalizations for hypoglycemia. He had not visited a diabetic care provider for either of those conditions. He had no progressive weight loss. There were no complications of diabetes related to the eyes, skin, peripheral arteries, heart, or renal system. The Veteran used insulin but had no restriction of activities. On a July 2011 VA examination, the examiner stated that there had been no problems with high or low blood sugar requiring hospital treatment. The Veteran's diabetes mellitus required insulin but no restricted diet. His diabetes resulted in some restriction of activities. An October 2011 VA examination report noted that the Veteran's diabetes mellitus was controlled on medications. A statement dated in October 2012 from a VA nurse practitioner indicated that the Veteran used insulin five times per day to manage his diabetes mellitus. The record shows that the Veteran's diabetes mellitus requires insulin, restricted diet, and regulation of activities. The current 40 percent rating contemplates such findings. In order to be entitled to the next higher evaluation of 60 percent, the evidence must also show that the Veteran's diabetes requires episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. The VA examinations of record have consistently noted that there have been no episodes of ketoacidosis or hypoglycemic reactions, no hospitalizations, and no complications beyond the already separately rated peripheral neuropathy and impotence. Thus, the currently assigned 40 percent evaluation assigned for the Veteran's diabetes mellitus accurately depicts the severity of the condition for the entirety of the rating period on appeal, and there is no basis for higher staged ratings. Peripheral Neuropathy Evaluation of peripheral neuropathy is governed by the Rating Schedule under provisions for evaluation of neurological conditions. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Hands The Veteran's peripheral neuropathy of the left and right hands, associated with diabetes mellitus, type II, are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8514, paralysis of the radial nerve. Given the anatomical location and neurological function affected by the symptomatology of the two disabilities, that code is the most appropriate for evaluation. Under 38 C.F.R. § 4.124a, Diagnostic Code 8514, mild, moderate or severe incomplete paralysis warrants a rating of 20, 30, and 50 percent for the major arm, or 20, 20, and 40 percent for the minor arm, respectively. A 70 or 60 percent disability rating is warranted for complete paralysis or the major or minor extremity, respectively, that is manifested by drop of the hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; inability to extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, and the loss of synergic motion of extensors that seriously impairs the hand grip. Total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2012). A VA examination in December 2006 noted the Veteran complained of numbness and tingling of his ring and little fingers. He had tingling in the rest of his hands down to his wrists. He also reported bilateral hand pain and weakness of grip. On examination, the examiner noted that the Veteran was right-handed. Neurological examination of the upper extremities showed motor function within normal limits. Sensory function was abnormal, with mild decrease in sharp discrimination bilaterally, more so on the left. Strength was within normal limits for the right and left hands. On VA examination in November 2007, neurological examination of the upper extremities showed motor function and sensory function were normal. Biceps and triceps jerks were 2+ bilaterally. On VA examination in April 2010, neurological examination of the upper extremities showed motor function and sensory function were normal. Biceps and triceps jerk were 2+ bilaterally. On VA examination in October 2010, the Veteran reported tingling, numbness, and pain in the hands. The examiner noted that there was no generalized muscle weakness, muscle wasting, or muscle atrophy. There was decreased gripping strength in the left hand, and 4/5 motor strength. Right and left sensory function in the stocking glove distribution was decreased. Reflexes showed biceps jerk, triceps jerk, brachioradialis and finger jerks were all 2+ bilaterally. The examiner noted that the decreased gripping strength in the left hand was secondary to left radial head replacement surgery in August 2009 following an injury. The examiner stated that the Veteran had mild neuropathy involving the bilateral hands and fingers that was associated with his diabetes mellitus. On VA examination in July 2011, the motor function of the upper extremities was within normal limits. Sensory function was decreased in the stocking glove distribution bilaterally. Reflexes showed biceps jerk, triceps jerk, brachioradialis and finger jerks were all 2+ bilaterally. The examiner described neuralgia of the bilateral upper extremities, secondary to diabetes mellitus, and stated that his neurological condition did not affect his daily activity. VA examination in October 2011 noted abnormal motor function with 4/5 left hand grip. There was motor function dysfunction, with decreased motor use of the left arm and elbow secondary to problems post-surgery of left elbow. Sensory examination was intact bilaterally. Reflexes showed biceps jerk, triceps jerk, brachioradialis and finger jerks were all 2+ bilaterally. The evidence does not show that the Veteran's peripheral neuropathy, right (major) upper extremity associated with diabetes mellitus, type II, manifests symptoms productive of moderate incomplete paralysis of the radial nerve. The October 2010 VA examiner described mild neuropathy due to diabetes mellitus, and the right upper extremity motor function has been consistently noted to be normal. The December 2006 VA examiner noted mild decrease in sharp discrimination on the right, but normal grip strength. VA examiners in October 2010 and July 2011 noted decreased sensory function on the right (which the July 2011 VA examiner noted did not affect daily activities), however VA examiners in November 2007, April 2010, and October 2011 noted normal sensory function on the right. Thus, the evidence as a whole does not demonstrate peripheral neuropathy of the right upper extremity that more nearly approximates moderate incomplete paralysis of the radial nerve. See 38 C.F.R. § 4.124a. The evidence does not show that the Veteran's peripheral neuropathy, left (minor) upper extremity associated with diabetes mellitus, type II, manifests symptoms productive of severe incomplete paralysis of the radial nerve. The December 2006 VA examiner noted mild decrease in sharp discrimination on the left, but normal grip strength. The October 2010 VA examiner noted that the decreased gripping strength in the left hand was secondary to left radial head replacement surgery in August 2009 following an injury, and that the Veteran had mild neuropathy involving the bilateral hands and fingers that was associated with his diabetes mellitus. The October 2011 VA examiner likewise attributed the decreased left hand grip strength to post-surgical residuals. VA examiners in November 2007, April 2010, and October 2011 noted normal sensory function on the left. Thus, the evidence as a whole does not demonstrate peripheral neuropathy of the left upper extremity, attributable to diabetes mellitus, that more nearly approximates severe incomplete paralysis of the radial nerve. See 38 C.F.R. § 4.124a. Feet The Veteran's peripheral neuropathy of the left and right lower extremities associated with diabetes mellitus, type II, are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8524, paralysis of the internal popliteal nerve (tibial). Given the anatomical location and neurological function affected by the symptomatology of the two disabilities, that code is the most appropriate for evaluation. Pursuant to Diagnostic Code 8524, for impairment of the internal popliteal (tibial) nerve, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, and a 30 percent rating for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis, manifested by lost plantar flexion, frank adduction of the foot impossible, flexion and separation of the toes abolished, inability to move any muscle of the sole of the foot, and, in lesions of the nerve high in the popliteal fossa, lost plantar flexion of the foot. 38 C.F.R. § 4.124a, Diagnostic Code 8524 (2012). On VA examination in December 2006, the Veteran reported not having much feeling in his feet. He described tingling and numbness of the feet. He described bilateral foot pain. Examination of the feet showed no tenderness, weakness, edema, atrophy, or disturbed circulation. Motor function was abnormal, with findings of mild decrease in strength at 3/5 bilaterally. Sensory function was abnormal with findings of mild decrease in sharp discrimination bilaterally. Knee and ankle jerks were 3+ bilaterally. On VA examination in November 2007, motor function of both feet was normal. Sensory function was abnormal, with loss of vibration sensation below the knees bilaterally. Knee jerk was 2+bilaterally, and ankle jerk was 0 bilaterally. VA examination in April 2010 showed normal motor and sensory functions of both lower extremities. Knee and ankle jerk were 2+bilaterally. Peripheral nerve involvement was not evident. VA examination in October 2010 showed normal motor function of both lower extremities. Sensory function for the stocking glove distribution was slightly decreased bilaterally. Knee and ankle jerk were 2+bilaterally. The examiner stated that the Veteran had mild neuropathy involving the feet and toes, attributable to diabetes mellitus. VA examination in July 2011 found normal motor function of both lower extremities. Sensory function for the stocking glove distribution was slightly decreased bilaterally. Knee and ankle jerk were 2+bilaterally. The examiner stated that the Veteran had mild neuropathy involving the feet and toes, attributable to diabetes mellitus. The Veteran's neuropathy had no affect on his daily activities. VA examination in October 2011 noted motor function within normal limits. Sensory examination was intact bilaterally. Knee and ankle jerk were 2+bilaterally. The examiner noted that there was no measurable neuropathy of either foot. While the December 2006 VA examination noted abnormal motor function, the VA examinations in November 2007, April 2010, October 2010, July 2011, and October 2011, all found normal motor function of both lower extremities. The evidence does not show that the Veteran's peripheral neuropathy, right lower extremity associated with diabetes mellitus, type II, or his peripheral neuropathy, left lower extremity associated with diabetes mellitus, type II, manifests symptoms productive of moderate incomplete paralysis of the tibial nerve. As reflected in the December 2006 (mild decrease in sharp discrimination), October 2010 (mild neuropathy), and July 2011 (mild neuropathy) VA examination reports' findings, the evidence shows that the disability picture of each of these conditions more nearly approximates mild incomplete paralysis. Thus, the currently assigned 10 percent ratings for peripheral neuropathy of the left and right lower extremities are proper, and higher ratings are not warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8524. Impotence The Veteran's service-connected impotence (erectile dysfunction) is currently rated as noncompensable under Diagnostic Code 7522. 38 C.F.R. § 4.115b. Under Diagnostic Code 7522, where the penis has a deformity with loss of erectile power, a 20 percent disability will be assigned. Diagnostic Code 7521 also provides a 20 percent disability rating for removal of the glans of the penis. Diagnostic Code 7520 provides a 30 percent disability rating if there is removal of half or more of the penis. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran has also been granted special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for his erectile dysfunction. Although his impotence has been progressively unresponsive to medication, the evidence does not indicate that any portion of the penis or the glans of the penis has been removed. Moreover, there is no indication that there is any deformity of the penis. In fact, the December 2006, November 2007, and October 2011 VA examination reports specifically note that the Veteran's penis was normal. Consequently, the Board finds that the Veteran does not have a deformity of the penis and does not meet the criteria for a compensable evaluation under Diagnostic Codes 7520, 7521 and 7522. Accordingly, a compensable initial disability rating for erectile dysfunction is not warranted. Extra-Schedular Consideration The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). In this case, the manifestations of the Veteran's diabetes, peripheral neuropathy, and impotence are consistent with the schedular criteria, and there is no objective evidence that the manifestations of his disabilities are unusual or exceptional. Therefore, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See also Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). ORDER A disability rating in excess of 40 percent for diabetes mellitus, type II, is denied. A disability rating in excess of 20 percent for peripheral neuropathy, right upper extremity, associated with diabetes mellitus, type II, is denied. A disability rating in excess of 20 percent for peripheral neuropathy, left upper extremity, associated with diabetes mellitus, type II, is denied. A disability rating in excess of 10 percent for peripheral neuropathy, right lower extremity, associated with diabetes mellitus, type II, is denied. A disability rating in excess of 10 percent for peripheral neuropathy, left lower extremity, associated with diabetes mellitus, type II, is denied. A compensable disability rating for impotence, associated with diabetes mellitus, type II, is denied. REMAND Under the "remarks" section of the October 2011 VA examination report, the examiner noted that "the effect on the claimant's usual occupation is not employable; light activities." On an addendum to the report, the examiner indicated that the Veteran's service connected disabilities did not functionally impair his ability to perform physical and sedentary activities of employment, however he then noted that there were impairments of "sedentary use of left hand secondary to neuropathy," "no impairment of [diabetes mellitus]," and "sedentary activity restrictions also secondary to morbid exogenous obesity." As the October 2011 VA examiner's findings on the question of whether the Veteran was unemployable based on his service connected disabilities were contradictory and incomplete, the examination is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the delay is regrettable, the Board has no choice other than to order a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician who has not previously examined the Veteran. 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. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the 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. Any indicated studies must be performed. The examiner must determine whether the combined effect of all of the Veteran's service-connected disabilities precludes him from engaging in substantially gainful employment, without regard to his age or nonservice-connected disabilities. The examiner must be advised that although VA regulations do not provide a definition of substantially gainful employment, VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the claims file to ensure that the aforementioned development is appropriately carried out, and arrange for any additional development indicated. Then readjudicate the claim for TDIU. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs