Citation Nr: 1324495 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-21 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus type I with hypertension and complete erectile dysfunction, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 20 percent rating for diabetes mellitus type I with hypertension and incomplete erectile dysfunction. The Veteran was scheduled for a Central Office hearing in August 2010. However, the Veteran failed to report to this hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). The Board remanded this claim for additional development in September 2010. The Board notes that the October 2007 VA examiner found that the Veteran's diabetes mellitus had significant effects on his occupation because it caused problems with lifting and carrying, as well as lack of stamina. Subsequently, an October 2011 VA examiner determined that the Veteran's diabetes mellitus had the occupational effect of lack of stamina, and that the Veteran had been medically retired from his job in 2009 due to lack of stamina. Accordingly, the Board finds that a claim for a TDIU as due to diabetes mellitus type I has been raised by the record. In light of the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), entitlement to a TDIU is properly considered as part of the claim for increased rating for diabetes mellitus, and the Board has rephrased the issues to include a claim for a TDIU. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from June 2005 to March 2012, are potentially relevant to the issues on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claims of entitlement to an increased rating for diabetes mellitus and for a TDIU. Regarding the claim for increased rating, the Board notes that this claim was remanded in September 2010, in part, to have a VA examiner address the issue of whether the Veteran's diabetes mellitus type I required a regulation of activities as indicated under Diagnostic Code 7913. The Board specifically referred to an April 2008 letter from the Veteran's employer in which it was determined that whenever occasional travel was necessary for the Veteran's work-related responsibilities, a department driver would be designated for him. The Veteran's employer based this determination on Dr. Carraway's April 2008 findings and medical opinion, which the Board also obtained as part of its September 2010 remand. On VA examination in October 2011, the VA examiner found that the Veteran's diabetes mellitus did not require regulation of activities. However, the VA examiner also noted that the Veteran's claims file had not been requested by the RO, and that he had only reviewed the Veteran's VA medical records. Accordingly, as the VA examiner did not have the benefit of review of the Veteran's claims file, including the April 2008 private medical report from Dr. Carraway in which he recommended that the Veteran get a driver/companion if possible, the claims file should be provided to the October 2011 examiner to obtain an opinion on the question of whether the Veteran's restriction of driving at work would constitute regulation of strenuous occupational activities as indicated under Diagnostic Code 7913. Thus, as the Veteran's claim for increased rating for diabetes mellitus is being remanded for additional development, the Board finds that the claim for a TDIU is inextricably intertwined with the claim for an increased rating for diabetes mellitus type I. The assigning of a higher disability rating for the Veteran's diabetes mellitus type I would potentially affect the issue of whether the Veteran was unemployable due to his service-connected disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180. Additionally, the Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim. Therefore, he should be provided with such notice on remand. Moreover, while the most recent VA examination in October 2011 noted that the Veteran's diabetes mellitus had the occupational effect of lack of stamina and that the Veteran had been medically retired from his job due to reduced stamina, it did not include an opinion as to whether the Veteran's lack of stamina that was specifically due to his diabetes mellitus type I would prevent him from obtaining or maintaining gainful employment. Accordingly, the claims file should be returned to the October 2011 examiner to obtain an opinion on that question. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Return the claims file to the examiner who conducted the October 2011 VA diabetes mellitus examination. After review of the claims file, to include the April 2008 private medical report from Dr. Carraway and the reports of the October 2007 and October 2011 VA examinations, the examiner should: a. Determine whether the Veteran's restriction from driving at work constitutes regulation of activities (avoidance of strenuous occupational and recreational activities). b. Provide an opinion as to whether the Veteran's diabetes mellitus type I symptomatology prevents him from obtaining or maintaining gainful employment, without regard to his age or nonservice-connected disabilities. A rationale for the opinions expressed should be provided. 3. After the development requested above, and any additional development deemed necessary, has been completed to the extent possible, the record should be reviewed and the claims for entitlement to an increased rating for diabetes mellitus type I and entitlement to a TDIU due to diabetes mellitus type I adjudicated. If the benefits sought on appeal are denied, then the Veteran and his representative should be furnished with a supplemental statement of the case that includes the regulations governing TDIU claims and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). _________________________________________________ K. GIELOW Acting 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).