Citation Nr: 1329348 Decision Date: 09/12/13 Archive Date: 09/24/13 Citation Nr: 1329348 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-39 437 ) DATE SEP 12 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a separate rating for diabetic retinopathy. 2. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for diabetes mellitus with erectile dysfunction and retinopathy. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This case was remanded by the Board in March 2010 and February 2011. A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. ORDER TO VACATE AND DISMISS On February 2011, the Board remanded the issue of entitlement to an extraschedular evaluation for diabetes mellitus. At the time, the case law regarding the interplay between TDIU, benefits under 3.321 and 4.16(a)(b) was evolving. With the benefit of hindsight, closer inspection of the pleading was to the effect that the Veteran was seeking unemployability compensation for diabetes and resulting complications. The term complication was not limited to the diabetes mellitus with the eye and erectile dysfunction. Our review reflects that the AOJ has, in fact, recognized the combined impact of diabetes mellitus and the complications and assigned TDIU under the provisions of 38 C.F.R. § 4.16(a). In essence, the benefit sought was granted. Therefore, this particular remanded issue has become moot. Also, the AOJ made a determination that the Veteran would not otherwise be eligible for SMC. In reaching this determination, we note that the notification of the grant of TDIU was December 24 and the pleading was dated December 16. We are left with the unmistakable conclusion that there was a crossing of the mail rather than a new pleading. Under the particular circumstances of this case, the benefit sought has been granted, the prior Remand is vacated and this particular issue before the Board is dismissed in light of the grant. In essence, the Board lacks jurisdiction when the benefit sought has been granted. Mintz v. Brown, 6 Vet. App. 277 (1994). Accordingly, the February 2011 Board decision addressing the issue of an extraschedular evaluation for diabetes mellitus is vacated and dismissed. FINDINGS OF FACT 1. The Veteran's diabetic retinopathy has been manifested by a corrected distance visual acuity of 20/30, bilaterally, with no record of visual field loss, pain, rest requirements, or episodic incapacity. 2. A total rating based upon individual unemployability based upon diabetic complications has been granted. The issue of entitlement to TDIU on an extraschedular basis is moot. CONCLUSIONS OF LAW 1. The criteria for a separate compensable rating for diabetic retinopathy have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.84a, Diagnostic Code 6006 (2012). 2. The issue of entitlement to TDIU on an extraschedular basis based upon complications of diabetes mellitus is dismissed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The record reflects that VA provided the Veteran with the notice required under VCAA by a letter dated in April 2007. VA provided supplemental VCAA notice with a letter dated in July 2008 which provided the Veteran with the schedular criteria for rating diabetes mellitus. Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In connection with the current appeal, available service treatment records, VA treatment records, and private treatment records have been obtained. In March 2010 and February 2011, the Board remanded this matter for additional development to include requesting additional treatment records and scheduling a VA examination. The RO/AMC has complied with these remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2011 VA examination report provides a detailed description of the Veterans diabetic retinopathy, including measurements of visual acuity. The examination report is adequate for rating of the Veteran's disability under the applicable rating criteria. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran filed a claim for an increased evaluation for his service-connected diabetes mellitus in February 2007. In November 2007, the RO continued a 20 percent evaluation for diabetes mellitus. In February 2011, the Board denied an increased rating for diabetes mellitus, and remanded the issue of whether a separate evaluation has been warranted for retinopathy at any point during the appeal period. The Rating Schedule does not contain a specific diagnostic code for diabetic retinopathy. However, where an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In this case, the Board finds that 38 C.F.R. § 4.84, DC 6006, which pertains to retinitis, is the most closely analogous diagnostic code. Currently DC 6006 is classified as retinopathy. During the pendency of the appeal, the criteria for rating eye disabilities changed effective December 10, 2008. 73 Fed. Reg. 66,543 (Nov. 10, 2008). Under the former version of the regulations, 38 C.F.R. § 4.84a, DC 6006, applied to retinitis and was to be rated, in chronic form, from 10 to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology was 10 percent. Under the general rating formula, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. The current criteria provide a 10 percent evaluation for incapacitating episodes having a total duration of at least one week. A compensable rating for loss of visual acuity requires that corrected vision be 20/40 or worse in one eye and 20/50 or worse in the other. 38 C.F.R. § 4.84(a), Diagnostic Codes 6078, 6079. The ratings increase in 10 percent increments according to the levels of vision impairment with the greatest award of 100 percent assignable for visual acuity of 5/200 in each eye. 38 C.F.R. § 4.84(a), Diagnostic Codes 6063-6078 (2008). Visual acuity is based on the best corrected distant vision. 38 C.F.R. § 4.75 (2008). The decision to rate complications separately are, in part, controlled by the rating criteria for diabetes mellitus. Noncompensable complications are to be considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2008). Here, we conclude that a separate compensable rating for diabetic retinopathy is not warranted. In its February 2011 remand, the Board noted that a VA eye examination had not been conducted. On the August 2011 VA eye examination uncorrected distance vision was 20/200 bilaterally and best corrected vision was 20/30 bilaterally. Uncorrected near vision was 20/70 in bilaterally and best corrected near vision was 20/50 bilaterally. His field of vision was full to confrontation, with diagnoses of moderate level non-proliferative diabetic retinopathy with moderately advanced cortical and nuclear cataracts. It was noted that he had underdone laser treatment in the right eye and was glaucoma suspect. In a May 2012 VA addendum opinion, the same optometrist stated that the Veteran did not have a visual field defect and that is why he was listed as glaucoma suspect. The examiner further stated, that the Veteran's diabetes mellitus did not cause his cataracts, but that it is at least as likely as not that the diabetes aggravated his cataracts beyond the natural progression. Upon review of the evidence of record, the Board finds that a separate compensable rating is not warranted for diabetic retinopathy under either criteria. Specifically, the Veteran's visual acuity on the August 2011 VA examination was 20/30 corrected distance vision bilaterally. This best corrected visual acuity corresponds to a noncompensable rating under the Table for Central Visual Acuity Impairment. The Veteran is not entitled to a separate rating based on visual field loss, pain, rest requirements, or episodic incapacity, as there is not evidence of such symptomology reported by the Veteran or recorded in the clinical findings of record. Moreover, there was not impairment of visual acuity significant enough to warrant a compensable rating under any other potentially applicable diagnostic codes. The Board notes that the August 2011 VA examiner did indicate that the Veteran's cataracts were aggravated by his service-connected diabetes mellitus. However, the Veteran's cataracts do not result in restriction of vision to a compensable level. In addition, there is no lay or medical evidence of an incapacitating episode. There is no evidence of visual complications of diabetes mellitus sufficient to warrant separate compensable evaluations under Diagnostic Code 7913. Therefore, the Board finds the preponderance of the evidence is against the grant of a separate, compensable rating for diabetic retinopathy. ORDER Entitlement to a separate rating for diabetic retinopathy is denied. The issue of entitlement to an extraschedular TDIU is dismissed. _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Citation Nr: 1106290 Decision Date: 02/15/11 Archive Date: 02/28/11 DOCKET NO. 08-39 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to an increased evaluation for diabetes mellitus with erectile dysfunction and retinopathy, currently rated as 20 percent disabling. 2. Entitlement to a separate rating for diabetic retinopathy. 3. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for diabetes mellitus with erectile dysfunction and retinopathy. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from November 1966 to November 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, the Board remanded this case for further development. The development is complete and the case has been returned to the Board for disposition. Correspondence received from the appellant during the course of this appeal reflects complaints related to his heart and skin. This matter is REFERRED to the RO for appropriate action. The issues of entitlement to a separate evaluation for diabetic retinopathy and entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for diabetes mellitus with erectile dysfunction and retinopathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Diabetes mellitus type II requires medication and a restricted diet, but no regulation of activities; erectile dysfunction secondary to diabetes mellitus is not manifested by penile deformity. CONCLUSION OF LAW The criteria for evaluation in excess of 20 percent disabling for diabetes mellitus with erectile dysfunction are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Codes 7522, 7913 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) at 119 (2004). This timing requirement applies equally to the initial- disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. VA has met its duty to notify. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, a claim for increase for diabetes mellitus was received in February 2007. Prior to the initial adjudication of the claim, the RO provided the appellant a letter with VCAA notice dated April 2007. At this time, VA notified the appellant that he needed to show worsening of his condition. VA also notified him of the evidence received and the types of evidence that could help substantiate his claim. Lastly, VA notified the appellant of the disability rating and effective date elements of his claim. Furthermore, VA supplemented its original VCAA notice with a letter dated July 2008, which provided the appellant with the schedular criteria for rating diabetes mellitus. The Board finds that the VCAA letter sent to the appellant in April 2007 essentially complied with statutory notice requirements as outlined above. VA has also satisfied its duty to assist. 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Pertinent treatment records have been associated with the claims folder. It is noted that the Board remanded this case in March 2010 for development that included requesting additional treatment records. VA made contact with the identified source and has ensured that all the appellant's medical records are in fact associated with the claims folder. VA afforded the appellant an opportunity to appear for a hearing. Additionally, VA afforded the appellant a VA examination. The Board notes that the recent VA examination is adequate as it reflects a pertinent medical history, review of the documented medical history, clinical findings, and diagnoses. The adequacy of this examination has not been challenged by either the appellant or his representative. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Claims for Increase Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re- evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Diagnostic Code 7913 provides a 20 percent rating for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated; and a 100 percent rating when the diabetes 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Based on the evidence presented, the Board finds that an evaluation in excess of the currently assigned 20 percent for diabetes mellitus is not warranted. In this regard, the Board notes that to warrant a higher evaluation the evidence must show diabetes mellitus type II requiring insulin, a restricted diet and regulation of activities. To warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive-i.e., there must be insulin dependence and restricted diet and regulation of activities. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). Here, at most, the more persuasive evidence of record shows that the appellant's diabetes mellitus requires medication and a restricted diet. The medical record is devoid of any showing of regulation of activities. VA treatment records show that the appellant is followed for diabetes mellitus type II. They further show that takes medication and regulates his diet for control of his condition. The treatment records specifically stated that the appellant may engage in activity as tolerated. A January 2007 VA treatment note reflects a plan as "diet with discretion, limit simple sweets, weight loss is recommended, activity as routine, light weights with reps, walking." This treatment note shows that activity is recommended, rather than restricted. The appellant argues that restricted activities are "inherent" in the medical determination that the appellant is unemployable due to diabetes mellitus and its complications. See VA Form 9, dated December 2008. The Board acknowledges that a VA doctor reported in March 2008 that the appellant was unemployable due to diabetes mellitus and its complications, and that VA awarded the appellant a total disability evaluation based on individual unemployability due to service-connected disability in October 2008. However, it is noted that the appellant's service- connected disabilities include retinopathy, neuropathy of the lower and upper extremities, and hypertension. To the extent that the appellant argues that restricted activities are inherent in the unemployability finding by a medical doctor, the Board disagrees as such an interpretation is inconsistent with the documented medical record showing that the appellant may engage in activities as tolerated and advising activity to include weights and walking. Furthermore, the Board finds that the appellant's belief that restricted activity is inherent in the determination of unemployability is not a reasonable interpretation because in view of the medical evidence showing that he may engage in activity as tolerated and that he should engage in activity, coupled with the complete absence of any express medical finding that restriction of activity was warranted for control of diabetes mellitus. Therefore, the Board finds that the appellant's argument is not persuasive, and without probative value. The Board assigns greater probative value to the treatment records and report of VA examination dated July 2007. The July 2007 VA examination report shows that, while the record shows poor control of diabetes mellitus, his condition is treated with insulin injections and an oral agent. The medical history self- reported by the appellant is silent for restriction of activities. Also, the examiner did not report that restriction of activities was required for control of diabetes mellitus type II. Therefore, the Board finds that there is no regulation of activities within the meaning of the regulation. The Board again emphasizes that, although the appellant requires medication and a restricted diet, and he has not been advised to limit his activities due to the diabetes. As such, he meets the criteria for a 20 percent rating, and no more, under 38 C.F.R. § 4.119, Diagnostic Code 7913. In the absence of evidence of insulin, restricted diet, and regulation of activities, there is no basis for an evaluation in excess of 20 percent disabling. (Emphasis Added). It is noted that the Board has specifically considered whether the appellant's inactivity due to symptoms associated with peripheral neuropathy have worsened his diabetes mellitus. However, there is no indication in the record that his inactivity has cause increased blood sugar levels or worsened his disorder. Regarding additional complications from diabetes mellitus, the Board notes that the appellant is currently separately rated for peripheral neuropathy of the lower and upper extremities and hypertension. The appellant did not perfect an appeal of the evaluations assigned for these disabilities, and a liberal reading of the pleadings does not raise any new claim for increase. The Board has also considered whether a separate compensable evaluation is warranted for erectile dysfunction and retinopathy. Retinopathy is addressed in the remand portion of this decision below. The Board notes that report of VA diabetes mellitus examination dated July 2007 reflects chronic erectile dysfunction. Report of VA examination dated September 2006 reflects complaint of erectile dysfunction, namely the inability to achieve an erection or have sexual intercourse. Report of VA examination dated August 2006 reflects normal male genitalia. A review of the pertinent evidence, lay and medical, shows no deformity of the penis or compensably disabling symptoms associated with erectile dysfunction. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Therefore, a separate compensable rating for erectile dysfunction is not warranted. The Board has considered whether a staged rating is warranted based on facts showing varying levels of disability under the rating schedule. However, the Board finds that diabetes mellitus with erectile dysfunction has remained essentially the same during the appeal period. As such, a uniform rating is warranted for the period at issue here and there is no basis for a staged rating. See Fenderson and Hart, supra. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased rating for diabetes mellitus type II, currently rated as 20 percent disabling, is denied. REMAND Duty to Assist: Eye Examination Required The appellant seeks an increased rating for diabetes mellitus with erectile dysfunction and retinopathy. As discussed above, an increased rating is not warranted under the rating schedule for diabetes mellitus and a separate rating is not warranted for erectile dysfunction. However, there is insufficient evidence of record to ascertain whether a separate evaluation is warranted for retinopathy. The Board observes that a VA eye examination has not been conducted. Therefore, remand is necessary for a VA eye examination. Thereafter, the RO should address whether a separate compensable evaluation is warranted for diabetic retinopathy. Extraschedular Consideration: Referral to the Director To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The appellant has expressly raised entitlement to an extraschedular evaluation for diabetes mellitus. He argues that his activities are restricted and that he is unemployable due to diabetes mellitus and its complication. In essence, the appellant argues that the schedular evaluation does not contemplate his level of disability and symptomatology. As such, the Board finds that the RO should refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for determining whether the assignment of an extraschedular rating is warranted. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the case is REMANDED for the following action: 1. The RO should refer the claim for diabetes mellitus to the Director of Compensation and Pension Services for an opinion on whether an extraschedular evaluation for service- connected diabetes mellitus under the provision of 38 C.F.R. § 3.321(b) is warranted. 2. The appellant should be scheduled for a VA eye examination to ascertain the severity of his service-connected diabetic retinopathy and any related symptoms. The claims folder should be made available to the examiner. A complete rationale for all opinions must be provided. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. The RO should consider whether a separate rating for retinopathy is warranted. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2010). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs