Citation Nr: 1322915 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-04 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, Type 2, prior to February 17, 2011. 2. Entitlement to a rating in excess of 40 percent for diabetes mellitus, Type 2, since February 17, 2011. 3. Entitlement to service connection for hypertension. 4. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1971, including service in the Republic of Vietnam from April 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2009 and February 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a rating of 20 percent for diabetes mellitus, Type 2 (DM), and denied service connection for hypertension, respectively. In March 2011, following the receipt of new evidence (the February 2011 VA examination) the RO issued a rating decision increasing the rating of the Veteran's DM to 40 percent, effective February 17, 2011. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that he may be unemployable due to symptoms of his service-connected DM, the issue of entitlement to a TDIU has been raised and must be considered. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND In a February 2011 rating decision, the RO denied service connection for hypertension. In May 2011, the Veteran submitted a letter disagreeing with that rating and contending that his hypertension is due to Agent Orange exposure in Vietnam. The Board accepts the Veteran's May 2011 statement as a Notice of Disagreement with the February 2011 rating decision. See 38 C.F.R. § 20.201 (2012). To date, however, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Veteran and his representative contend that his DM and related disabilities (peripheral neuropathy of the upper and lower extremities) have worsened, and consequently he is entitled to higher disability ratings. The Veteran was last afforded VA examinations for his service-connected peripheral neuropathy and DM disabilities in February 2010 and February 2011, respectively. Moreover, the February 2011 VA examiner stated that the Veteran's diabetic peripheral neuropathy "appeared much worse." As these examinations are now more than two and three years old, and in light of the new and relevant VA treatment records that have since been associated with the claims file, the Veteran should be afforded a contemporaneous VA examination to assess the current nature, extent and severity of his DM and its complications. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The Veteran's combined disability rating is 80 percent, and his DM is rated 40 percent disabling. Therefore, he meets the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a). VA treatment records show that the Veteran retired in 2011 and shortly thereafter began part time work. Therefore, a VA examination is necessary to address whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(a). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for a TDIU. 2. Issue the Veteran an SOC with respect to his claim of entitlement to service connection for hypertension, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 3. Obtain VA treatment records, physically or electronically, from the Providence VA Medical Centers dated since January 2013. 4. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his diabetes and peripheral neuropathy symptoms and the impact of those conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his diabetes mellitus Type 2 and diabetic peripheral neuropathy. The entire claims file (paper and electronic), including any newly obtained treatment records, must be made available to and reviewed by the examiner and all necessary tests should be conducted The examiner should report all manifestations of the diabetes mellitus Type 2. The examiner should state whether the diabetes mellitus Type 2 is manifested by 1) episodes of ketoacidosis, 2) progressive loss of weight and strength, and/or 3) hypoglycemic reactions requiring a) one or two hospitalizations per year, b) at least three hospitalizations per year, c) twice a month visits to a diabetic care provider, and/or d) weekly visits to a diabetic care provider. The examiner should also discuss the severity of all neurologic pathology affecting the bilateral upper and lower extremities. The disability caused thereby should be described as equating to mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. The examiner should also state whether the diabetes mellitus Type 2 required regulation of activities (avoidance of strenuous occupational and recreational activities) prior to February 17, 2011. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 6. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 7. Then readjudicate the appeal. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ STEVEN D. REISS 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).