Citation Nr: 1324802 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-05 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and H.W. ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for service connection for peripheral neuropathy of the right and left upper extremities, and entitlement to a TDIU. In December 2008, a Travel Board hearing was held before the undersigned. A transcript of that proceeding has been associated with the claims folder. In an April 2009 decision, the Board denied the Veteran's claim for service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected type II diabetes mellitus, and remanded the issue of entitlement to a TDIU. The Veteran appealed the Board's decision with respect to his claim for service connection for peripheral neuropathy of the bilateral upper extremities to the United States Court of Appeals for Veterans Claims (Court). In April 2010, the Court issued an order granting a March 2010 joint motion to remand (JMR) the claim to the Board. Both issues were again before the Board in April 2011 when they were both remanded for additional development. Both issues have since been returned to the Board for further appellate consideration. A review of the Veteran's Virtual VA electronic claims file shows that during the course of this appeal, the RO has adjudicated multiple additional claims in August and November 2010 rating decisions. In the August 2010 decision, the RO in relevant part, granted service connection and assigned a 100 percent disability rating effective March 7, 2007, for cerebral thrombosis and cerebral infarction with residual loss of use of the left upper and left lower extremities and peripheral neuropathy of the left lower extremity as secondary to service-connected type II diabetes mellitus and entitlement to special monthly compensation for loss of use of one hand and one foot. In the November 2010 decision, the RO in relevant part, granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 50 percent evaluation, effective April 24, 2009. As to the Veteran's August 2006 claim for entitlement to a TDIU, both the Appeals Management Center (AMC) in the October 2010 and March 2012 SSOCs, and the Veteran's representative in the July 2013 appellant brief, suggest that this issue is moot in light of the Veteran's receipt of a schedular 100 percent evaluation, effective March 7, 2007. For reasons explained below, however, the Board finds that the issue of entitlement to a TDIU is not moot and remains pending. See Bradley v. Peake, 22 Vet. App. 280 (2008). Finally, as noted in the April 2009 Board determination and the April 2011 remand, during the December 2008 hearing, the Veteran asserted that he had recently fallen due to his service-connected neuropathy of his bilateral lower extremities and cracked his teeth. Given the distinct nature of the disability claimed, and the distinct etiology asserted, the Board determined that a new and separate claim of entitlement to service connection for cracked teeth secondary to service-connected peripheral neuropathy of the lower extremities had been raised, which was referred back to the AOJ on both occasions for appropriate action. It does not appear that this issue was ever addressed. As such, the issue of entitlement to service connection for cracked teeth, as secondary to service-connected peripheral neuropathy of the lower extremities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 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 asserts that he has chronic peripheral neuropathy of his bilateral upper extremities secondary to his service-connected type II diabetes mellitus. In March 2010, the Court remanded this issue to the Board as it was agreed that the Board erred in discounting an April 2007 VA medical record that showed a diagnosis of "diabetic neuropathies: upper and lower extremities." The parties agreed that the April 2007 VA medical record should not have been discounted on the basis that there was no indication that such diagnosis was based on objective clinical findings or diagnostic testing without first seeking clarification as to the basis of such diagnosis from the VA medical provider who made the diagnosis. The Board was also directed to consider whether the April 2007 diagnosis satisfies the service connection requirement of a finding of a current disability. On review, the April 2007 VA medical record that contains diagnosis of "diabetic neuropathies: upper and lower extremities" was submitted by the Veteran himself and it is merely a VA active problem list showing that such diagnosis was apparently made on April 6, 2007. The name and medical specialty of the VA medical professional who made that diagnosis is not listed and although it appears that the record contains VA treatment records dating through April 2008, there is no VA treatment record currently associated with the claims file dated April 6, 2007. During the December 2008 hearing, the Veteran testified that he believed that his VA primary care physician at the West Palm Beach VAMC had diagnosed peripheral neuropathy of his upper extremities and related such diagnosis to his service-connected type II diabetes mellitus. He also reported that he had been receiving ongoing VA treatment for peripheral neuropathy of his upper extremities at the West Palm Beach VAMC. At the time of the hearing, he was attempting to obtain any follow-up neurological care from a facility located in Boca Raton because he was not satisfied with the neurological care that he was received at the West Palm Beach VAMC. In the April 2011 remand, the Board explicitly directed that "any and all VA treatment records relating to the issues on appeal that have not already been associated with the claims file should be obtained." While April 2011 correspondence from the AMC requested that the Veteran identify all VA and non-VA treatment received for peripheral neuropathy of his upper extremities, it appears that due to the Veteran's failure to respond, AMC failed to obtain ongoing VA treatment records from the West Palm Beach and Miami VAMCs. VA treatment records are deemed to be part of the record on appeal since they are within VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As it appears that only sporadic VA treatment records have been associated with the claims file, all VA treatment records dating since 2006 must be obtained and associated with the claims file for review. Moreover, a remand by the Board confers upon the appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also observes that the aforementioned August and November 2010 rating decisions issued during the pendency of this appeal show that there are additional treatment records and examination reports that have not been associated with either the Veteran's physical or electronic claims files. For example, there is a reference to a November 2009 VA examination report that contains numerous clinical findings pertinent to the left upper extremity. Such a record would be relevant to the service connection claim on appeal. To ensure that the record is complete, any temporary claims files located at the RO must be merged with the appellate claims file on remand. As to the Veteran's claim for a TDIU, as noted in the introduction, service connection is in effect for type II diabetes mellitus with erectile dysfunction and diabetic retinopathy with glaucoma rated as 20 percent disabling since May 8, 2001; diabetic retinopathy with glaucoma associated with type II diabetes mellitus rated as 10 percent disabling from May 29, 2002 to November 2, 2009, and as noncompensable (0 percent) thereafter; hypertension associated with type II diabetes mellitus rated as noncompensable (0 percent), effective July 7, 2005; peripheral neuropathy of the bilateral lower extremities associated with type II diabetes mellitus rated as 10 percent disabling (each lower extremity), effective April 22, 2006; cerebral thrombosis and cerebral infarction with residual loss of use of the left upper and left lower extremities and peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus rated as 100 percent disabling, effective March 7, 2007; and PTSD rated as 50 percent disabling, effective April 24, 2009. The Veteran's combined disability ratings since his claim for a TDIU was received in August 2006 are 40 percent prior to March 7, 2007, and 100 percent thereafter. As to the AMC's and the Veteran's representative's suggestion that the claim for entitlement to a TDIU is moot in light the assignment of the 100 percent schedular evaluation effective March 7, 2007, the Board notes that prior to 2008, VA often treated a 100 percent schedular rating as subsuming the need for TDIU consideration on the basis that the 100 percent schedular rating delivered more benefits than could be obtained by a TDIU rating. The Board's treatment in this regard stemmed primarily from a June 1999 opinion of VA's General Counsel (GC), which held that receipt of a 100 percent scheduler rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See VA O.G.C. Prec. Op. No. 6-99; Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In 2008, however, the previously noted precedential GC opinion was withdrawn in response to the Court's 2008 decision in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect. Here, service connection was granted for cerebral thrombosis and cerebral infarction with residual loss of use of the left upper and left lower extremities and peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus rated as 100 percent disabling, effective March 7, 2007. Pursuant to Bradley, such an award does not automatically moot the pending appeal for a TDIU and the claim must be readjudicated on the merits by the agency of original jurisdiction as contemplated in Bradley. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's temporary claims file from the RO and merge it with the claims file on appeal. 2. Obtain and associate with the claims file all outstanding records of VA treatment pertaining to the Veteran's upper extremities and diabetes mellitus from the West Palm Beach and Miami VAMCs dating since 2006, to specifically include any reports of neurological testing of the upper extremities. Also obtain and associate with the claims file any VA treatment records and progress notes pertaining to nursing home/rehabilitation dating from approximately March to November 2007 as alluded to during the hearing, and since April 2010 as alluded to in a report of hospitalization. An inquiry should also be made as to whether there are any treatment records pertaining to the Veteran at any VA facility located in Boca Raton, Florida as alluded to during his December 2008 hearing. All records/responses received should be associated with the claims file and all efforts to obtain records should be fully documented. The facility must provide a negative response of records are not available. 3. Conduct any additional development deemed necessary for the adjudication of the Veteran's claim for entitlement to TDIU. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims remaining on appeal. If the benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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).