Citation Nr: 1329688	
Decision Date: 09/17/13    Archive Date: 09/25/13

DOCKET NO.  07-37 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of VA surgical treatment in May 2005.  

2.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD).  

3.  Entitlement to an initial compensable rating for transient blurred vision.  

4.  Entitlement to an effective date earlier than November 6, 2008 for the grant of service connection for type II diabetes mellitus.  

5.  Entitlement to an initial rating in excess of 20 percent for type II diabetes mellitus.  

6.  Whether a separate compensable rating is warranted for peripheral neuropathy as a complication of diabetes mellitus.  

7.  Whether a separate compensable rating is warranted for a skin disorder as a complication of diabetes mellitus.  

8.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  

9.  Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for a back disorder.  


REPRESENTATION

Appellant represented by:	Christopher Loiacono


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to December 1969.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2007, March 2010, May 2010, and December 2010 rating decisions.  

In the February 2007 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bacteria in system and aggravation of peripheral vascular disease (PVD) causing increased leg pain.  

During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in Indianapolis, Indiana.

In the March 2010 rating decision, the Indianapolis RO, in pertinent part, granted service connection and assigned an initial 20 percent rating for type II diabetes mellitus associated with herbicide exposure, effective November 6, 2008.  The RO also found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a back condition.  

In the May 2010 rating decision, the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective October 12, 2007.  

In the December 2010 rating decision, the RO, in pertinent part, granted service connection for transient blurred vision related to fluctuations in blood glucose levels, bilateral, and assigned an initial noncompensable (0 percent) rating, effective June 16, 2010.  The RO also denied entitlement to a TDIU.     

In a July 2012 rating decision, the RO granted an initial 50 percent rating for PTSD.  Despite the grant of this higher rating, the Veteran has not been awarded the highest possible evaluation, and his claim remains in appellate status.  A.B. v. Brown, 6 Vet. App. 35 (1993).  

In his February 2007 notice of disagreement (NOD) with the February 2007 denial of compensation under the provisions of 38 U.S.C.A. § 1151, the Veteran requested a hearing before a Decision Review Officer (DRO).  However, in an October 2007 hearing form submitted with his VA Form 9, the Veteran indicated that he wanted a videoconference hearing before a Veterans Law Judge and did not check the box indicating that he wanted a hearing before a DRO.  Similarly, in a July 2012 Appeal Hearing Options form, the Veteran also did not check the box indicating that he wanted a hearing before an RO hearing official.  Rather, he indicated that he wanted a hearing before a Veterans Law Judge at the RO.  The Veteran has not been afforded a hearing before a DRO; however, in March 2013, the Veteran testified before the undersigned Veterans Law Judge via videoconference.  Unfortunately, a written transcript of the proceeding could not be produced due to audio difficulty resulting in inaudible testimony.  The Veteran was advised of this fact and was offered the opportunity to appear at another hearing via letter in June 2013.  The Veteran responded that he did not want another hearing.    

While the Veteran has not been afforded a hearing before a DRO as requested in February 2007, in light of his subsequent communications regarding his request for a Board hearing, the March 2013 videoconference hearing, and his June 2013 statement that he did not wish to have another Board hearing, the Board finds that there are no outstanding hearing requests.  See Bowen v. Shinseki, 25 Vet. App. 250 (2012).  

The Board notes that the claim for compensation under the provisions of 38 U.S.C.A. § 1151 has previously been characterized as a claim for compensation under the provisions of 38 U.S.C.A. § 1151 for bacteria in system and aggravation of PVD causing increased leg pain.  The Veteran, however, has repeatedly asserted that he suffered multiple complications, including a perforated colon, bacteria in his system, gangrene in three toes of the right foot, blisters on his legs, weight loss, hip and leg pain, chronic fatigue, an abdominal hernia, removal of part of his abdomen, and the need for five additional surgical procedures (including colostomy, colostomy takedown, ventral hernia repair, and removal of infected mesh) which also resulted in complications, as a result of VA negligence during a May 31, 2005 surgical procedure.  Accordingly, the Board has characterized this issue as reflected on the title page.  

The RO has not previously addressed whether separate compensable ratings are warranted for peripheral neuropathy and/or a skin disorder as complications of diabetes mellitus.  However, there is evidence of record indicating that the Veteran experiences peripheral neuropathy and a skin disorder as complications of his service-connected diabetes mellitus.  Pursuant to Note (1) of Diagnostic Code 7913, compensable complications of diabetes mellitus are to be separately evaluated 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.  38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2013).  As further development is required regarding whether or not separate compensable ratings are warranted for peripheral neuropathy and/or a skin disorder as complications of diabetes mellitus, these matters are addressed in the remand below.  

The Board observes that there is also some evidence of record suggesting that the Veteran may have peripheral vascular disease, a cardiovascular condition, and/or erectile dysfunction related to diabetes mellitus.  However, during the pendency of the appeal, each of these conditions was specifically addressed by the RO.  In the March 2010 rating decision, the RO denied service connection for a cardiovascular condition, to include as secondary to diabetes mellitus.  The RO confirmed and continued the prior denial of service connection for a cardiovascular condition as secondary to diabetes mellitus and denied service connection for peripheral vascular disease of the right and left lower extremities, to include as secondary to diabetes mellitus, in the December 2010 rating decision.  Most recently, in a December 2012 rating decision, the RO denied service connection for erectile dysfunction in light of VA examiner's opinion that erectile dysfunction pre-dated diabetes mellitus and is due to hypertension medication.  The Veteran did not file an NOD with respect to these denials of service connection for a cardiovascular condition, peripheral vascular disease, or erectile dysfunction.  See 38 C.F.R. § 20.302.  Accordingly, these matters are not presently for appellate consideration.  See 38 C.F.R. § 20.200 (an appeal to the Board consists of a timely filed NOD in writing and, after receipt of an SOC, a timely filed substantive appeal).

The Board further notes that the claims file reflects that the Veteran was previously represented by Disabled American Veterans (as reflected in an April 2005 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative).  In August 2012, the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, appointing Christopher Loiacono as his representative.  

The RO most recently issued a supplemental statement of the case (SSOC) regarding the claims for higher initial ratings for diabetes mellitus, PTSD, and blurred vision; the claim for an earlier effective date for the grant of service connection for diabetes mellitus; and the claim for a TDIU in October 2012.  An SSOC regarding the claim for compensation under § 1151 was issued in November 2012.  Subsequent to issuance of these SSOCs, the Veteran has submitted additional evidence in support of his claims.  This evidence was accompanied by a waiver of RO consideration.  See 38 C.F.R. § 20.1304.

The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence which was not considered by the RO in the most recent SSOCs.  The Veteran has not specifically submitted a waiver of RO consideration of this evidence.  However, the additional medical evidence included in the Virtual VA e-folder is not pertinent to the claims decided here.  The AOJ will have the opportunity to consider this evidence in readjudicating the other claims remaining on appeal.  See 38 C.F.R. § 20.1304.

In a December 2012 rating decision, the RO granted service connection and assigned an initial 20 percent rating for urinary frequency associated with type II diabetes mellitus, effective September 23, 2010.  [The rating decision stated that service connection was being granted for urinary infrequency, however, this appears to be a typographical error as the RO assigned a 20 percent rating based on awakening to void three or four times per night and a daytime voiding interval between one and two hours.]  The RO also continued a noncompensable (0 percent) rating for bilateral hearing loss and denied service connection for erectile dysfunction associated with type II diabetes mellitus and a non-healing surgical wound aggravated by type II diabetes mellitus.  The RO found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for hypertension, but found that new and material evidence had been submitted sufficient to reopen claims for service connection for a back disorder and right and left hip disorders.  

The Board notes that, as indicated above, the RO had previously found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a back condition in a March 2010 rating decision.  In January 2011, the Veteran submitted a statement expressing disagreement with that denial.  If, after a valid NOD is filed, VA fails to issue a SOC, then the claim remains pending.  See Myers v. Principi, 16 Vet. App. 228, 235-236 (2002); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995).  The United States Court of Appeals for Veterans Claims (Court) has held that "[w]here an appellant places a claim for one disability into appellate status by virtue of an NOD, that claim is resolved by a later appellate adjudication of a subsequent claim where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar."  Jones v. Shinseki, 23 Vet. App. 122, 126 (2009).  The Court quoted from its decision in Juarez v. Peake indicating that "[o]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board.  Only a subsequent Board decision can resolve an appeal that was initiated but not completed."  Jones, 23 Vet. App. at 125 (quoting Juarez, 21 Vet. App. 537, 543); see 38 U.S.C.A. § 7105(a), (d)(1).  Accordingly, despite the issue being addressed in the December 2012 rating decision, as the Veteran timely expressed disagreement with the March 2010 denial of the request to reopen a claim for service connection for a back disorder, this claim must be remanded for issuance of an SOC.  This will be addressed in the remand below.  

Regarding the other matters addressed in the December 2012 rating decision, in February 2013, the Veteran filed a statement titled "APPEAL" in which he discussed several of the issues currently on appeal as well as several matters addressed in the December 2012 rating decision.  In particular, the Veteran listed his claims for right and left hip pain and asserted that he continued to walk with a cane and took pain medication; listed a claim for urinary frequency and asserted that he continued to use the restroom 10 to 20 times a day; listed a claim for bilateral hearing loss and asserted that his hearing continued to decline; and listed a claim for a non-healing surgical wound and stated that this still had not healed since 2007 and was related to diabetes.  It is unclear from this statement whether the Veteran wishes to appeal these issues addressed in the December 2012 rating decision.  While special wording is not required, a notice of disagreement (NOD) must express disagreement with a specific determination of the RO and reflect a desire for appellate review.  38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300; see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002).  The Veteran is advised that, if he wishes to appeal any of the matters decided in the December 2012 decision, he has until one year from the date of the December 2012 letter advising him of the rating decision to file an NOD regarding these claims.

In an October 2010 statement, the Veteran asserted that he had a skin rash, elevated cholesterol, and was unable to have children as a result of in-service exposure to Agent Orange.  In response, in a March 2011 letter, the RO advised that Veteran that he should notify the RO as to whether or not it was his intention to file a claim for service connection for several conditions, including elevated cholesterol and an inability to have children.  In April 2011, the Veteran asserted that he had elevated cholesterol and an inability to have children associated with dioxin exposure.  In his February 2013 statement, the Veteran asserted that his kidney disease due to diabetes continued to get worse.  The Board notes that a claim for service connection for a rash of the arms and legs was previously denied in the March 2010 rating decision and the Board is presently remanding the matter of whether a separate compensable rating is warranted for a skin disorder as a complication of diabetes mellitus.  

The request to reopen a claim for service connection for a skin rash; claims for service connection for elevated cholesterol and sterility, to include as due to in-service herbicide exposure; and a claim for an increased rating for diabetic nephropathy have been raised by the record, but have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action.  

In the February 2013 statement, the Veteran listed several conditions, including ischemic heart disease, impaired myocardial perfusion, peripheral artery disease, and aortic sclerosis.  The claim for service connection for ischemic heart disease, claimed as enlarged heart, was denied in the December 2010 rating decision, at which time the RO also confirmed and continued the previous denial of service connection for a cardiovascular condition, to include as secondary to diabetes mellitus.  Claims for service connection for peripheral vascular disease affecting the right and left lower extremities were previously denied in March 2006 and December 2010 rating decisions.  Also, in July 2011, the Veteran asserted that he had developed numerous conditions since being in Vietnam, adding that he was exposed to Agent Orange.  These listed conditions included an enlarged heart, cardiovascular disease, a mental health disorder, alcohol abuse, and lumps in both arms.  It is unclear whether the Veteran is seeking to reopen his claims for service connection for a heart disorder and peripheral vascular disease and whether he is seeking service connection for lumps in arms, alcohol abuse, and a mental health disorder other than PTSD.  These matters are referred to the AOJ for clarification and appropriate action.  

The Board's decision denying an earlier effective date for the grant of service connection for type II diabetes mellitus and denying an initial rating in excess of 20 percent for that disability are set forth below.  The remaining issues listed on the title page 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.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished.

2.  The record does not contain any communication or evidence received prior to November 6, 2008, which could be interpreted as an informal or formal claim for service connection for type II diabetes mellitus.

3.  Since November 6, 2008, the Veteran's type II diabetes mellitus has required the use of oral hypoglycemic agents and a restricted diet; regulation of activities has not been shown and insulin has not been required.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than November 6, 2008, for the grant of service connection for type II diabetes mellitus, have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.155, 3.400 (2013).

2.  The criteria for an initial rating in excess of 20 percent for type II diabetes mellitus have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled.  The Veteran's claim for service connection for diabetes mellitus was received in November 2008.  Thereafter, he was notified of the general provisions of the VCAA by the RO in correspondence dated in November 2008.  This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding the VCAA.  Thereafter, the claim was reviewed and the RO issued the February 2007 rating decision granting service connection for type II diabetes mellitus.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007).

The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements apply to all elements of a claim.  Notice as to these matters was provided in the November 2008 VCAA letter.  The Board notes that the claims for an earlier effective date for the grant of service connection and for a higher initial rating for the Veteran's service-connected diabetes mellitus are downstream issues, which were initiated by an NOD.  The Court has held that, as in this case, once an NOD from a decision establishing service connection and assigning the rating and effective date has been filed the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  These matters were addressed in June 2012 statements of the case (SOCs).  Hence, there is no duty to provide additional VCAA notice in this case.

The Board also finds that all necessary development of the downstream earlier effective date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran.  Resolution of this matter ultimately turns on when he filed his claim, so an examination and opinion are not needed to fairly decide this appeal for an earlier effective date.  See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C).  See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008).  Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA in regard to this claim.

With respect to the claim for a higher initial rating for diabetes mellitus, a review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim during the course of this appeal.  His VA and private treatment records and Social Security Administration (SSA) records have been obtained and associated with his claims file and Virtual VA e-folder.  The Veteran was also provided with VA examinations to evaluate his service-connected diabetes mellitus in January 2009 and January 2012.

The Board has considered the Veteran's April 2009 assertion that his January 2009 VA examination was incomplete in that he was examined in about 30 minutes, the examiner did not review his records, and did not listen to anything he told him.  However, the VA examination report reflects that, while the claims file was not available for review, the examiner reviewed the Computerized Patient Record System (CPRS) from the Northern Indiana VA Healthcare System.  The VA examiner interviewed and examined the Veteran, and his examination included findings responsive to the pertinent rating criteria.  Importantly, the Veteran was more recently afforded a VA examination to evaluate his diabetes mellitus in January 2012 and this VA examination report also includes findings responsive to the pertinent rating criteria.  The VA examinations, read together, are adequate to evaluate the service-connected diabetes mellitus.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims.
  
Analysis - Earlier Effective Date

Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013).  If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2)(i). 

The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. "Date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

The claims file reflects that the Veteran's original claim for service connection for diabetes mellitus was received on November 6, 2008.

The Board has thoroughly reviewed the claims file and Virtual VA e-folder, but finds no communication regarding service connection for diabetes mellitus prior to the claim for service connection received on November 6, 2008.  The Board acknowledges that VA must liberally construe all documents filed by a claimant.  See EF v. Derwinski, 1 Vet. App. 324, 326 (1991).  In this case, however, there simply is no document that might be construed, even in the broadest sense, as a claim for service connection for diabetes mellitus dated prior to November 6, 2008.  Rather, while the Veteran filed claims for service connection for other disabilities in April 2005 and October 2007 and filed a claim for compensation under the provisions of 38 U.S.C.A. § 1151 in April 2006, these claims make no mention of diabetes mellitus.  

The Veteran has argued that he is entitled to an earlier effective date for the grant of service connection because he had diabetes mellitus prior to November 6, 2008.  He has argued that VA failed to diagnose diabetes mellitus earlier than 2008 and, had he been diagnosed earlier, he would have filed an earlier claim.  

Specifically, in a January 2009 statement, the Veteran asserted that he had told doctors at the VA Medical Center (VAMC) that he was diabetic, but they did not treat him for diabetes.  During a January 2009 VA diabetes mellitus examination, the Veteran reported that he had been diagnosed with diabetes mellitus at the Houston VAMC in 2005.  In July 2009, he asserted that he was making a complaint of negligence and reported, among other things, that he had told doctors he was diabetic in 2005 but was never treated for diabetes until 2009.  In his January 2011 NOD, the Veteran asserted that he was submitting lab results going back to 2005 which would prove that he should have been diagnosed with diabetes in 2005.  He argued that, due to negligence by VA medical staff, he was not diagnosed until 2008.  In February 2011, the Veteran specifically asserted that he was filing a claim for compensation under the provisions of 38 U.S.C.A. § 1151 due to the fact that he should have been diagnosed with diabetes mellitus in June 2005 and argued that the effective date for the grant of service connection should be June 2005.  He stated that he never filed a claim until 2008, but if his medical providers at the Houston VAMC would have diagnosed him in 2005, he would have filed a claim at that time.  He stated that his lab results from 2005 revealed that he was diabetic at that time and, when he was diagnosed in 2008, his providers told him he had had diabetes for many years.  In June 2013, the Veteran reiterated that he believed he was entitled to an earlier effective date for diabetes mellitus because his doctors told him he was not healing after his first surgery in 2005 and his doctor had told him that he was likely diabetic, but the issue was never pursued.  The Veteran again stated that he would have filed a claim for service connection earlier if he had been properly diagnosed.  

The Board acknowledges that VA treatment records do include elevated glucose readings in 2005.  Treatment records from the Veteran's VA hospitalization in June and July 2005 reflect that he was given NPH insulin, but do not include a diagnosis of diabetes mellitus.  A June 2007 VA treatment record notes that the Veteran had elevated blood sugars with no history of diabetes mellitus.  The dietitian commented that adequate blood glucose control was needed for the promotion of wound healing.  A July 2008 VA primary care note reflects that the Veteran had elevated A1C, triglycerides, and glucose, which the nurse practitioner described as "quite odd" since the Veteran denied being diabetic and there was no record of diabetes when looking through some of his past records in the Veterans Health Information Systems and Technology Architecture (VISTA).  During treatment in September 2008, the Veteran stated that he had not previously been diagnosed as diabetic, but it had been suggested to him in the past that he might be diabetic.  The assessment on that date was that the Veteran was diabetic.  

The Veteran brought past lab results since 2005 to his March 2011 VA primary care appointment and asked the nurse practitioner to review them to see when his elevated glucose started.  She stated that she skimmed the lab results which showed glucose often elevated as well as intermittent normal readings.  She stated that his diabetes mellitus likely could have started during 2005.  

A March 2011 VA genitourinary examination report includes the examiner's note that evidence in the claims file suggested that the Veteran had persistently elevated glucose levels in 2005.  She opined that it was at least as likely as not that the Veteran was diabetic for a number of years prior to his diagnosis of diabetes.  

Even if the elevated glucose readings included in the VA treatment records dated prior to November 6, 2008 were construed as indicating the presence of diabetes mellitus, evidence of diabetes mellitus prior to November 6, 2008 would not substantiate the claim for an earlier effective date for the grant of service connection as such records would not constitute an informal claim for service connection.  While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established.  The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition.  See Brannon, 12 Vet. App. at 35; see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).  

In regard to his argument that VA was negligent in failing to diagnose diabetes mellitus in 2005, the Board has considered that the Veteran has asserted that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus; however, the Veteran first asserted that VA was negligent in failing to diagnose diabetes mellitus in July 2009.  He had previously reported, in January 2009, that he had told his VA doctors that he was diabetic, but they did not treat him for diabetes.  However, even if the Veteran were to be awarded compensation for diabetes mellitus pursuant to 38 U.S.C.A. § 1151 (which is a moot point as he is already in receipt of service-connected compensation for this disability), an effective date prior to November 6, 2008 (the effective date of the grant of service connection for type II diabetes mellitus) would not be warranted.  

In this regard, the effective date for the award of compensation pursuant to 38 U.S.C.A. § 1151 is the date the aggravation or injury was suffered, if a claim is received within one year after that date; otherwise, the effective date is the date the claim is received.  38 C.F.R. § 3.400(i)(1).  

VA may accept as a claim for benefits under 38 U.S.C.A § 1151 and 38 C.F.R. §  3.361 any communication in writing indicating an intent to file a claim for disability compensation or dependency and indemnity compensation under the laws governing entitlement to veterans' benefits for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such communication is contained in a formal claim for pension, compensation, or dependency and indemnity compensation or in any other document.  38 C.F.R. § 3.154.

Here, the Veteran has repeatedly argued that VA physicians should have diagnosed diabetes mellitus in 2005; however, there is no communication from the Veteran or his representative which can be construed as a claim for compensation under the provisions of 38 U.S.C.A. § 1151 until his January 2009 statement.  Even if this statement were to be construed as a claim for benefits under 38 U.S.C.A. § 1151, it was received more than one year after 2005.  Therefore, the earliest possible effective date would be the date of receipt of the claim (January 2009).  38 C.F.R. § 3.400(i)(1).  Since the Veteran is currently in receipt of service-connected disability benefits for diabetes mellitus from November 6, 2008 (so prior to January 2009), the Veteran's arguments (made since January 2009) that VA was negligent in failing to diagnose diabetes mellitus in 2005 can not provide a basis for assignment of an earlier effective date for the award of compensation for diabetes mellitus.  

In short, the record includes no statement or communication from the Veteran, prior to November 6, 2008, that constitutes a claim for service connection for type II diabetes mellitus, and the Veteran has not otherwise established that there exists any such claim.  According to the applicable regulation, the effective date of the Veteran's grant of service connection for type II diabetes mellitus should be November 6, 2008, the date the RO first received any communication indicating an intent to apply for service connection for this disability.  See 38 C.F.R. § 3.400(b)(2)(i). 

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority.  As, on these facts, no effective date for the grant of service connection for type II diabetes mellitus earlier than November 6, 2008 is assignable, the claim for an earlier effective date for the grant of service connection must be denied.

Analysis - Higher Initial Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  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.

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that 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, 509-510 (2007). Where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

In the March 2010 rating decision, the RO granted service connection and assigned an initial 20 percent rating for diabetes mellitus, pursuant to Diagnostic Code 7913.  38 C.F.R. § 4.119, Diagnostic Code 7913.  

Under Diagnostic Code 7913, diabetes mellitus requiring insulin or an oral hypoglycemic agent and a restricted diet warrants a 20 percent rating.  A 40 percent rating is assigned for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities.  A 60 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring 1 or 2 hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent rating requires more than 1 daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities), with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight or strength, or complications that would be compensable if separately evaluated.  38 C.F.R. § 4.119, Diagnostic Code 7913.

Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913).  Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).

Notably, "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 (2007).

The Board observes that the rating criteria contained in Diagnostic Code 7913 are "successive"; that is, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  Each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth.  Accordingly, under this and other diagnostic codes that are successive, consideration of 38 C.F.R. § 4.7 is not required.  See Camacho, 21 Vet. App. at 366.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that if disability rating criteria are written in the conjunctive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria.  Middleton v. Shinseki, No. 2013-7014, 2013 WL 4105647, at *5 (Fed. Cir. Aug. 16, 2013).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

VA treatment records dated since September 2008 reflect diagnoses of and treatment for diabetes mellitus.  

The Veteran was afforded a VA diabetes mellitus examination in January 2009.  He reported that he had been diagnosed with diabetes mellitus at the Houston VAMC in 2005.  He stated that his diabetes was controlled with a diabetic diet and Metformin.  He denied a history of ketoacidosis or hypoglycemia.  There was no restriction of activities on account of diabetes.  He reported being followed by his primary care physician every three months.  The diagnoses included type II diabetes mellitus.  

In an April 2009 statement, the Veteran expressed disagreement with the examiner's finding that he did not have restriction of activities, asserting that he had cardiovascular disease related to diabetes and had had six surgeries due to complications from bypass surgery.  The Veteran asserted that diabetes was the cause of all his existing problems.  

In a July 2010 statement, the Veteran asserted that he should be awarded a higher rating for diabetes mellitus because his physician believed he would be a very high risk for surgery due to the fact that he was a diabetic.  He added that his prior surgery on the abdominal wall, in June 2007, still had not healed.  

August 2009 and October 2010 VA treatment records include a diagnosis of diabetes mellitus and the Veteran was instructed to exercise regularly. 

The assessment following VA primary care treatment in January 2011 included type II diabetes mellitus.  The Veteran declined insulin injection, with mildly elevated A1C.  Glipizide and Metformin were increased and the Veteran was to continue checking his blood sugars on a daily basis.  

A March 2011 VA mental health note reflects that the Veteran was dealing with multiple stressors, which were affecting his sugar level.  He reported that his primary care physician might put him on insulin.  

In a November 2011 statement, the Veteran reported that he had been referred to a nutritionist for a controlled diet and exercise program due to uncontrolled high blood sugar and diabetes.  

The Veteran was afforded a VA diabetes mellitus examination in January 2012.  The examiner indicated by marked box that the Veteran's diabetes was managed by restricted diet and prescribed oral hypoglycemic agent(s).  He did not mark any box indicating that diabetes mellitus was treated with insulin.  The examiner indicated by marked box that the Veteran required regulation of activities as part of medical management for diabetes mellitus.  In providing an example of how the Veteran was required to regulate his activities, he stated, "Ride stationary bike - 20-25 minutes."  The Veteran reported seeing his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month.  He denied any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months.  He denied progressive unintentional weight loss or progressive loss of strength attributable to diabetes mellitus.  The examiner reported that the Veteran did have complications of diabetes mellitus, specifically, diabetic peripheral neuropathy and diabetic nephropathy.  He indicated by marked box that the Veteran had erectile dysfunction, peripheral vascular disease, skin condition(s), and eye condition(s) that were at least as likely as not due to diabetes mellitus.  The examiner opined that the Veteran's diabetes mellitus (and complications of diabetes mellitus) did not impact his ability to work.  Rather, he stated that the Veteran did not work due to abdominal pain, hip, and back conditions.  

In an April 2012 statement, the Veteran reported that he was on a restricted diet and took medication for his diabetes.  He added that his medical provider thought he should be on insulin.  

In July 2012, the Veteran stated that his blood sugar had never been under control and he was on a restricted diet and exercise program for diabetes.  He added that he was on medication and, although he was not yet on insulin, was told he would be.  

In support of his claim for a higher initial rating for diabetes mellitus, the Veteran submitted an April 2013 VA treatment record, which includes an assessment of diabetes.  A1C was described as acceptable, and the Veteran was to continue Metformin and Glipizide.  The Veteran also submitted a diabetes mellitus impairment questionnaire completed by this physician.  The physician stated that the Veteran had been diagnosed with type II diabetes mellitus.  She indicated by check mark that he required treatment with restricted diet and oral hypoglycemic agent for this condition.  She did not indicate that he needed either insulin or regulation of activities.  The physician noted that the Veteran had not suffered from ketoacidosis or hypoglycemic reactions requiring hospitalization within the past 12 months.  She opined that, as a result of the Veteran's service-connected diabetes mellitus and secondary impairments, he would not be capable of performing gainful employment.  

As previously discussed, Diagnostic Code 7913 provides that compensable complications of diabetes mellitus are to be separately rated.  Here, the Veteran is being separately compensated for diabetic nephropathy, evaluated as 30 percent disabling, and urinary frequency, evaluated as 20 percent disabling, associated with his service-connected diabetes mellitus.  The Board is remanding the claim for an initial compensable rating for transient blurred vision related to fluctuations in blood glucose levels associated with diabetes mellitus as well as the matters of whether separate compensable ratings are warranted for peripheral neuropathy and/or a skin disorder as complications of diabetes mellitus.   While there is evidence of record suggesting that the Veteran may also have a cardiovascular condition, peripheral vascular disease, and erectile dysfunction related to his service-connected diabetes mellitus, the RO has denied service connection for each of these conditions, to include as secondary to diabetes mellitus, during the pendency of the appeal.  As the Veteran's claimed complications of diabetes mellitus have either been addressed by the RO during the pendency of the appeal, or will be addressed on remand, the Board's decision here is limited to the question of whether an initial rating in excess of 20 percent is warranted for diabetes mellitus.   

Here, the evidence simply does not reflect that the Veteran has required insulin or regulation of activities for diabetes mellitus since November 6, 2008.  

While the record reflects that the Veteran has received insulin for diabetes mellitus in the past (for example, during his VA hospitalization in June and July 2005), the question for consideration is the severity of his service-connected diabetes mellitus since the effective date of the grant of service connection, November 6, 2008.  There is no evidence that his service-connected diabetes mellitus has required insulin since that time.  Rather, the Veteran declined insulin injection during VA treatment in January 2011.  The Veteran reported during VA mental health treatment in March 2011 that his primary care physician might put him on insulin; stated in April 2012 that his medical provider thought he should be on insulin; and reported in July 2012 that he was not yet on insulin (although he had been told he would be).  However, the record simply does not reflect that insulin has been started.  Neither the January 2012 VA examiner nor the VA physician who filled out the April 2013 diabetes mellitus impairment questionnaire marked that insulin was required to manage the Veteran's diabetes.  Rather, both physicians indicated that his diabetes mellitus was treated with restricted diet and oral hypoglycemic agents.  Significantly, the most recent, April 2013, VA treatment record indicates that the Veteran was to continue Metformin and Glipizide for his diabetes mellitus.  

While the Veteran asserted in April 2009 that his diabetes mellitus did require restriction of activities, in that he had cardiovascular disease related to diabetes and had six surgeries due to complications from bypass surgery, the evidence does not indicate that his diabetes mellitus has required the avoidance of strenuous occupational and recreational activities, as contemplated in the pertinent rating criteria.  In reaching this conclusion, the Board has carefully considered that the January 2012 VA examiner indicated by marked box that the Veteran required regulation of activities as part of medical management for diabetes mellitus; however, in providing an example of how the Veteran was required to regulate his activities, he indicated that he was to ride a stationary bike.  The January 2012 VA examination report, therefore, indicates that the Veteran was to exercise, as opposed to avoiding strenuous activities.  The conclusion that the Veteran's diabetes mellitus has not required regulation of activities as contemplated in the pertinent rating criteria is further supported by the January 2009 VA examination report which indicates that there was no restriction of activities on account of diabetes and August 2009 and October 2010 VA treatment records reflecting that the Veteran was instructed to exercise regularly.  In November 2011, the Veteran himself reported that he had been referred to a nutritionist for a controlled diet and exercise program due to uncontrolled high blood sugar and diabetes and he reported in July 2012 that he was on an exercise program for diabetes.  Significantly, in the April 2013 diabetes mellitus impairment questionnaire, the Veteran's VA physician did not indicate that the Veteran required regulation of activities.  

Without a showing that the Veteran has required insulin and regulation of activities to treat his diabetes mellitus, a 40 percent rating for this disability is not warranted.  See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also Middleton, Tatum, Camacho, supra.    

The above determinations are based upon consideration of pertinent provisions of VA's rating schedule.  The Veteran's diabetes mellitus has not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996).  

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the service-connected diabetes mellitus.  The rating schedule contemplates diabetes mellitus requiring oral hypoglycemic agent and restricted diet and allows for higher disability ratings for diabetes mellitus requiring additional treatment (such as insulin and regulation of activities) and with more severe symptoms, and allows for separate compensable ratings for complications (which, in this case, have either previously been addressed by the RO or are being remanded for further development).  Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disability.  The symptoms of the Veteran's service-connected diabetes mellitus are adequately compensated in the disability rating assigned.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  Therefore, referral for consideration of an extra-schedular rating is not warranted.

The Board has considered the benefit-of-the-doubt doctrine; however, for the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of an initial rating in excess of 20 percent for type II diabetes mellitus.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An effective date earlier than November 6, 2008 for the grant of service connection for type II diabetes mellitus is denied.  

An initial rating in excess of 20 percent for type II diabetes mellitus is denied.  


REMAND

As indicated above, the evidence of record suggests that the Veteran has peripheral neuropathy and a skin disorder related to his service-connected diabetes mellitus.  However, additional VA examinations are necessary to clearly identify whether the Veteran has these conditions as complications of diabetes mellitus and, if so, to provide adequate findings which are responsive to the pertinent rating criteria, to allow for appropriate evaluation of any such complications.   

As discussed in the introduction, the Veteran has asserted that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of VA surgical treatment in May 2005.  He has repeatedly asserted that he suffered multiple complications, including a perforated colon, bacteria in his system, gangrene in three toes of the right foot, blisters on his legs, weight loss, hip and leg pain, chronic fatigue, an abdominal hernia, removal of part of his abdomen, and the need for five additional surgical procedures (including colostomy, colostomy takedown, ventral hernia repair, and removal of infected mesh) which also resulted in complications, as a result of VA negligence during a May 31, 2005 surgical procedure.  

The Veteran was afforded a VA examination in conjunction with his claim for compensation under the provisions of 38 U.S.C.A. § 1151 in January 2007.  The examiner, Dr. W.Z., noted that the Veteran underwent aortobifemoral bypass for symptomatic severe aortoiliac occlusive disease in May 2005 and the surgery went uneventfully per report.  However, the Veteran developed left colocutaneous fistula two weeks after his surgery, which required left colectomy and end colostomy.  He subsequently underwent colostomy takedown and midline hernia repair.  The Veteran's current complaints consisted of lack of energy, persistent hip pain, and being very unhappy.  Abdominal examination revealed a large incisional hernia to the left of midline.  The examiner opined that the Veteran's condition "is probably related to the postoperative complications and appears disabilitating.  However, his fatigue is not typically result of surgery."  The examiner recommended an orthopedics evaluation for hip pain and recommended evaluating other causes of fatigue, such as hypothyroidism, anemia, depression, endocrine disorder, and malnutrition.  

In a March 2007 letter, the January 2007 VA examiner, Dr. W.Z., wrote that, after further reviewing the Veteran's chart, he believed that the Veteran's condition was "disabilitating and likely related to the postoperative complications of the original aortobifemoral bypass."  

Unfortunately, the January 2007 VA examiner's opinion fails to address whether the Veteran has any additional disability/disabilities which are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or which are due to an event which was not reasonably foreseeable.  See 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013).  Accordingly, remand is required to afford the Veteran a new VA examination.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  

The Veteran was most recently afforded VA examinations to evaluate his service-connected blurred vision and PTSD in January 2012 and July 2012, respectively.  Evidence of record suggests that each of these disabilities has worsened since these most recent examinations.  Accordingly, new VA examinations to evaluate these disabilities are warranted.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995).  

There is also evidence indicating that the Veteran may be unemployable as a result of his service-connected disabilities.  However, he has not yet been afforded a VA examination to clearly address the question of whether his service connected disabilities render him unable to secure and follow a substantially gainful occupation, consistent with this education and experience.  He should be afforded such an examination on remand.  38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a).  

Moreover, as stated in the introduction, the Veteran has raised claims including a request to reopen a claim for service connection for a skin rash and claims for service connection for elevated cholesterol and sterility, which are being referred to the AOJ for appropriate action.  Given that the outcome of each of these claims, as well as claims remanded here, could affect the claim for a TDIU, the Board finds that the claim for a TDIU is inextricably intertwined with these claims and that the claims should be considered together.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991).  Therefore, appellate review of the claim for TDIU must be deferred until the above-described claims, which have been raised by the Veteran, are adjudicated.  

Remand of the claim for compensation under the provisions of 38 U.S.C.A. § 1151 is also necessary to obtain outstanding pertinent records in VA's possession.  In this regard, the claims file does not include a signed consent form in regard to the Veteran's May 31, 2005 surgical procedure, despite the fact that a May 30, 2005 VA treatment record indicates that the Veteran had consented and understood the risks of the procedure and a nurse intraoperative report from the date of surgery indicates that consent was verified.  The VA treatment records presently associated with the claims file do reflect that blood transfusion consent and informed consent notes dated June 14, 2005; and informed consent note dated June 15, 2005; and blood transfusion consent and informed consent notes dated February 28, 2006 were scanned into VISTA.  Unfortunately, these consent forms are not available for the Board's review.  The claims file does include June 2007 informed consent forms for open ventral hernia repair and laparoscopic ventral hernia repair.  These notes indicate that the full consent documents could be accessed through VISTA imaging.  On remand, copies of any signed consent form(s) regarding the Veteran's May 31, 2005 surgical procedure, as well as the subsequent surgical procedures which he has asserted resulted from complications from his May 2005 surgery, should be obtained and associated with the claims file or Virtual VA e-folder.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Additionally, in a July 2009 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), the Veteran reported that he had received plastic surgery treatment at the Indianapolis VAMC in 2009.  While the claims file includes plastic surgery treatment records from the Indianapolis VAMC dated in December 2008 and July 2010 (pertaining to his abdominal surgical wound), the July 2009 21-4142 suggests that additional treatment records from this facility, which are potentially pertinent to the claim for compensation under the provisions of 38 U.S.C.A. § 1151, may be available.  The Board further points out that the most recent treatment record from the Indianapolis VAMC presently associated with the claims file is dated in March 2013.  Any more recent pertinent treatment records should be obtained on remand.  

In regard to his claim for a higher initial rating for PTSD, the Board notes that, in a March 2013 statement, the Veteran's representative stated that the VA psychiatrist who evaluated the Veteran on October 31, 2012, Dr. R.C., completed a Psychiatric/Psychological Impairment Questionnaire.  The October 31, 2012 treatment record from Dr. R.C. does indicate that disability paperwork was completed.  Dr. R.C. stated that the Veteran's disability paperwork was filled out and the Veteran would go through the medical release of information for paperwork process/copy as per protocol.  However, this Psychiatric/Psychological Impairment Questionnaire is not associated with the claims file or Virtual VA e-folder.  The Veteran's representative also stated that the Veteran's VA psychologist, Dr. B.N., also completed a Psychiatric/Psychological Impairment Questionnaire on October 31, 2012; however, this questionnaire is also is not associated with the claims file or Virtual VA e-folder.  Copies of these questionnaires should be obtained on remand.  

Additionally, the Virtual VA e-folder includes treatment records from the VA Northern Indiana Healthcare System dated from July to November 2012.  The Veteran has submitted copies of more recent VA treatment records in support of his claims.  However, to ensure that the record is complete, the AMC/RO should obtain and associate with the claims file all pertinent VA treatment records dated since November 2012.  

Finally, as stated in the introduction, in the March 2010 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a back condition.  In January 2011, the Veteran's representative submitted a statement in which he indicated that a statement was being submitted in support of the Veteran's pending appeal for benefits.  Attached to this cover letter was a statement from the Veteran in which he listed his appeals.  Included among these was his claim for service connection for a back injury.  He submitted a copy of an August 2010 letter in support of his claim, and stated that the letter indicated that his back condition was service-connected.  The January 2011 communication from the Veteran constitutes a timely NOD with the March 2010 denial of the request to reopen a claim for service connection for a back disorder.  By filing a timely NOD with March 2010 denial of the request to reopen a claim for service connection for a back disorder, the Veteran has initiated appellate review on this claim; however, the RO has yet to issue an SOC with respect to this claim, the next step in the appellate process.  See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).  Consequently, the request to reopen a claim for service connection for a back disorder must be remanded for the issuance of an SOC.  Id.  The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202.

Accordingly, the case is REMANDED for the following action:

1. Furnish to the Veteran and his representative an SOC as regards the request to reopen a claim for service connection for a back disorder, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue.  

The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here whether new and material evidence has been submitted sufficient to reopen a claim for service connection for a back disorder -a timely appeal must be perfected within 60 days of the issuance of the SOC. 

2.  After complying with the duties to notify and assist, adjudicate the Veteran's request to reopen a claim for service connection for a skin rash; claims for service connection for elevated cholesterol and sterility, to include as due to in-service herbicide exposure; and a claim for an increased rating for diabetic nephropathy.  The Veteran should be notified of these decisions and of his appellate rights.

3.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD, blurred vision, peripheral neuropathy, a skin disorder, and/or complications from his May 31, 2005 surgical procedure.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.  

A specific request should be made for:  (1) copies of any signed consent forms pertaining to the Veteran's May 31, 2005 VA surgical procedure and/or subsequent surgical procedures (including on June 15, 2005, February 28, 2006, June 18, 2007, July 2, 2007, and July 4, 2007), including any signed consent forms available in VISTA; (2) any outstanding treatment records from the Indianapolis VAMC, dated in 2009 and since March 2013; (3) any Psychiatric/Psychological Impairment Questionnaires completed in October 2012, including any documents available in VISTA; and (4) treatment records from the Northern Indiana Healthcare System, dated since November 2012.  

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

4.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to determine whether he has any additional disability due to VA surgical treatment in May 2005, and whether such disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or, whether such disability was the result of an event not reasonably foreseeable.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred additional disability (present at any time since May 2005) as the result of VA treatment, including surgery, in May 2005, to include, but not limited to:  a perforated colon, bacteria in his system, gangrene in three toes of the right foot, blisters on his legs, weight loss, hip and leg pain, chronic fatigue, an abdominal hernia, removal of part of his abdomen, and the need for five additional surgical procedures (including colostomy, colostomy takedown, ventral hernia repair, and removal of infected mesh).  

If it is at least as likely as not that the Veteran incurred additional disability, he or she should also opine, in regard to each disability, as to whether the proximate cause of such disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or (b) an event not reasonably foreseeable.

In determining whether any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA, the examiner should specifically consider whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider.  

The examiner is advised that, whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.

As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following:

* On May 30, 2005, the Veteran was seen by vascular surgery at the Houston VAMC for 50 yard bilateral claudication.  Ateriogram performed in April 2005 showed bilateral aortoiliac occlusive disease with occlusion of the left common/external iliac as well as severe atherosclerotic disease of the left SFA/PFA with reconstitution distally.  It was planned that the Veteran would undergo aorto-bifemoral bypass graft placement on May 31, 2005.  The physician, Dr. P.B. indicated that the Veteran had consented and understood the risks, including death, stroke, myocardial infarction, hemorrhage, infection, need for further operation, and possible lower extremity ischemia resulting in amputation.  Another vascular surgery note from the same day reflects that another physician, Dr. P.L., discussed in great detail with the Veteran the risks of his planned aortobifemoral bypass grafting procedure, including myocardial infarction, stroke, pneumonia, mesenteric infarction, respiratory failure due to prolonged ventilation, spinal cord paralysis, erectile dysfunction, renal failure, aortic graft thrombosis or infection, limb loss, and even death.  Dr. P.L. stated that the overall complication rate of the procedure was approximately two to five percent.  He stated that the Veteran "accepts these risks and wishes to proceed with the procedure."

* The May 31, 2005 operation report reflects that the Veteran underwent aortal bifemoral bypass graft placement, resection of redundant graft, primary anastomosis, and embolectomy of left lower extremity for aortoiliac occlusive disease.  The operation report states that there were no complications.  

* A June 2005 discharge summary reflects that, on the day of discharge following his hospitalization in May and June 2005, the Veteran was ambulating without difficulty, was tolerating diet by mouth, and was afebrile.  White blood cell count trended towards normal and stool had become more formed with decreased frequency.  Wound was clean, dry, and intact with no signs of infection.  The discharge diagnoses were status post aortobifemoral bypass, left lower extremity embolectomy, aortoiliac occlusive disease.  

* A July 2005 discharge summary reflects that the Veteran was hospitalized at the Houston VAMC for just over three weeks in June and July 2005, being readmitted three days after his prior discharge.  The discharge summary notes that the Veteran had aortobifemoral bypass for PVD on May 31, 2005, but his postoperative course was complicated with blue toe syndrome and darkening of the great and fourth toes.  Two weeks later, he presented with a fever and CT scan of the abdomen revealed pelvic collection, for which he underwent laparotomy and his sigmoid colon was perforated and Hartman's procedure was done.  The discharge diagnosis was status post Hartmann's procedure for sigmoid colon perforation following aortobifemoral bypass.  

* A June 14, 2005 vascular surgery note reflects that the risks of the Veteran's planned surgery included further infection of graft material, limb loss, stroke, myocardial infarction, and death.  The physician noted that the risk of complication and/or death was significant, but the Veteran understood and wished to proceed.  

* The June 15, 2005 operation report reflects that the Veteran underwent exploratory laparotomy and left hemicolectomy with end colostomy placement and exploration of left groin wound.  The pre-operative diagnosis was enterocutaneous fistula, status post aortofemoral bypass.  The post-operative diagnosis was coloenteric fistula.  The Veteran had presented with an infected abdominal wound.  Upon opening the wound, stool contents were able to be expressed from the wound, so the decision was made to take the Veteran to the operating room for an exploratory laparotomy.  The operation report states that there were no complications.  

* A June 2005 vascular surgery note documents that the right foot had scattered ischemia which had not changed since the Veteran's initial surgery.  The physician commented that this was likely due to microemboli.  

* A November 2005 VA treatment record indicates that the Veteran underwent aortobifemoral bypass in May 2005 for PVD and his surgical course was complicated by colocutaneous fistula requiring colostomy as well as blue toe syndrome in the right foot.  

* A January 2006 VA pain clinic note documents that the Veteran had a lot of questions as to how plaque from his aorta could cause colonic perforations.  The physician explained how plaque release from aortic clamp release could cause mesenteric ischemia.  

* A February 28, 2006 operation report reflects that the Veteran underwent colostomy takedown and lysis of adhesions.  The pre- and post-operative diagnosis was diverting colostomy.  The report notes that the Veteran's aortobifemoral bypass had been complicated with bowel-related complications that were treated with a diverting colostomy.  The Veteran had experienced significant impairment of his lifestyle by the colostomy and was also developing malnutrition secondary to possible diarrhea and had requested to have colostomy takedown.  The risks and benefits of the procedure, including graft infection, graft failure, and death were explained to the Veteran and he agreed to proceed.  According to the operation report, there were no complications.  

* In his April 2006 claim, the Veteran asserted that a great deal of bacteria had entered his system as a result of his May 31, 2005 surgery and he had gangrene in three toes on the right foot.  The Veteran stated that he experienced complications while in the hospital, due to "so many fluids and antibiotics in my system."  He also reported that he had "hundreds of blisters on both legs."  The Veteran stated that he remained sick for many months after being released from the hospital in July 2005, lost weight, and was unable to walk due to pain in his legs.  
	
* The Veteran was afforded a VA examination in conjunction with his claim for compensation under the provisions of 38 U.S.C.A. § 1151 in January 2007.  The Veteran's current complaints consisted of lack of energy, persistent hip pain, and being very unhappy.  Abdominal examination revealed a large incisional hernia to the left of midline.  The examiner opined that the Veteran's condition "is probably related to the postoperative complications and appears disabilitating.  However, his fatigue is not typically result of surgery."  The examiner recommended an orthopedics evaluation for hip pain and recommended evaluating other causes of fatigue, such as hypothyroidism, anemia, depression, endocrine disorder, and malnutrition.  

* In a March 2007 letter, the January 2007 VA examiner, Dr. W.Z., wrote that, after further reviewing the Veteran's chart, he believed that the Veteran's condition was "disabilitating and likely related to the postoperative complications of the original aortobifemoral bypass."  

* In a March 2007 statement, the Veteran made a list of his complaints regarding VA negligence.  He asserted that VA physicians were negligent during his bypass surgery; he was misdiagnosed by emergency room and other doctors; he was overmedicated by doctors causing damage to his legs; the doctors did not determine that his colon was perforated for 14 days; his health was damaged due to bacteria in his system, plaque was not prevented from entering his system, causing perforation of the colon, gangrene of the toes, and removal of nine inches of colon; he received poor care in the hospital and after discharge; he was not treated for what he came to the hospital for; and he was not advised of the risk of bypass surgery.  He asserted that he had been told by cardiovascular resident doctors that his colon had most likely been perforated because of negligence due to plaque spraying out through his system, which got into the vessels in his colon and into three toes on the right foot, in which he developed gangrene.  The Veteran stated that he was told that plaque could have been prevented from entering his system and it should not have taken 14 days to determine that his colon was perforated.  He added that he was also told that his perforated colon may have been caused from being overmedicated.  He stated that the head of anesthesiology had told him that he believed he had been overmedicated and received too many fluids.  

* In a March 2007 letter, Dr. P.L., the Chief of the Houston VAMC vascular service, wrote that, after his May 31, 2005 surgery, the Veteran experienced multiple complications which included a left colocutaneous fistula for which he underwent a left colectomy and colostomy.  He also developed a large abdominal incisional hernia and later underwent a colostomy takedown procedure with lysis of adhesions in February 2006.  Dr. P.L. stated that, as a result of the Veteran's multiple operations, he had developed a chronic fatigue syndrome, and experienced persistent back and hip pain which further contributed to his disability.  Dr. P.L. opined that the Veteran underwent numerous abdominal operations due to complications related to his original aortobifemoral bypass operation, including the colocutaneous fistula which had required the colostomy creation and colostomy takedown.  He added that the Veteran had also developed a large incisional hernia related to his aortobifemoral bypass operation.  Dr. P.L. opined that the Veteran was disabled due to chronic fatigue, a large abdominal hernia, multiple previous abdominal operations, and complications arising from these abdominal operations.  

* In a March 2007 letter, Dr. C.B. wrote that the Veteran had an aortobifemoral bypass at the VAMC and subsequent complications related to this surgery had caused him to have a large incisional hernia at the original surgery site, which had caused the Veteran discomfort and contributed to a poor quality of life.  

* In a March 2007 letter, Dr. M.R., the Chief of pain management at the Houston VAMC, wrote that the pain service had been consulted in June 2005 to evaluate the Veteran for right-sided blue toe syndrome and evaluation revealed lower extremity pain of ischemic origin.  Dr. M.R. noted that the Veteran had undergone multiple surgeries for his original vascular disease and its complications.  He indicated that he had reviewed his chart and opined that his condition was disabling and he seemed to be disabled due to the complications of his vascular disease and aorto-femoral bypass surgery.  

* A May 2007 VA general surgery note states that, as a result of his aortobifemoral bypass surgery, the Veteran experienced postoperative complications including an ischemic colon that required several operative interventions.  The physician noted that he had developed a ventral hernia.  The physician, Dr. D.A., opined that, as a result of his multiple surgical interventions and complicated course, he had developed a permanent disability that included a chronic fatigue syndrome as well as inability to perform any kind of physical exertion.  He concluded by stating that the Veteran had "a significant disability as a result of all of the above."

* In a May 2007 letter, Dr. P.L. opined that the Veteran had become disabled due to multiple abdominal operations and complications arising from multiple operations and had also been experiencing disabling pain due to his incisional hernia.  Dr. P.L. commented that one notable complication was a colocutaneous fistula which developed following his initial aortobifemoral bypass, for which he underwent a colostomy operation and subsequent colostomy takedown.  Dr. P.L. stated that, as a result of these multiple operations, the Veteran suffered from chronic fatigue and constant abdominal pain.  

* In April 2007, the Veteran requested repair of his ventral hernia.  After a lengthy discussion, the Veteran reported that he was willing to accept the risks of surgery.  A June 2007 VA pre-operative note indicates that the Veteran had a symptomatic incisional hernia and was scheduled for elective repair.  The risks and benefits were explained to the Veteran and he understood and agreed.  On June 18, 2007, the Veteran underwent open ventral hernia repair with mesh.  According to the operation report, there were no complications.  

* A July 2007 discharge summary from the Houston VAMC reflects that the Veteran presented for follow-up 11 days after his open ventral hernia repair with GoreTex DualPlus mesh with a large seroma.  The Veteran was admitted for operative removal of infected GoreTex mesh, abdominal washout, and temporary abdominal vac closure.  He tolerated the surgery well and was taken back to the operating room two days later for Alloderm closure of the open abdomen.  He also tolerated this procedure well.  

* In an August 2007 letter, Dr. J.S., the Deputy Chief of Staff of the Houston VAMC wrote that the Veteran's recovery from his May 31, 2005 surgery was marred only by a prolonged intensive care unit course secondary to respiratory distress.  He was discharged in good condition, but returned to the VAMC three days later with feculent drainage from his left flank which was determined to be secondary to a colocutaneous fistula, for which he underwent creation of a colostomy on June 15, 2005.  Dr. J.S. noted that pathologic specimens showed cholesterol embolization (he commented that vascular surgery is one known risk factor for this condition) which caused ischemia in the colon with focal transmural necrosis and perforation allowing bowel contents to enter the abdominal cavity and cause an infection (abscess).  He noted that the colostomy was taken down in February 2006 and, after this surgery, he developed an abdominal incisional (ventral) hernia, for which he underwent surgery in June 2007.  The following month, the Veteran noted signs of infection with exposed mesh, so he underwent additional surgery in July 2007.  He continued to have a WoundVac as a result of that surgery and also had chronic pain and feelings of chronic fatigue.  

* During VA primary care treatment in June 2012, the Veteran described diarrhea alternating with constipation since his abdominal surgery.  

In rendering the requested opinion, the examiner should in particular consider the January, March, and May 2007 medical opinions (discussed above).  

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

5.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA psychiatric examination to evaluate his service-connected PTSD.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of:  memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control, communication, and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; obsessional rituals; and delusions and/or hallucinations.  The examiner should specifically address the level of social and occupational impairment attributable to the Veteran's PTSD.  The examiner should provide a multi-axial diagnosis, including assignment of a GAF scale score that represents the level of impairment due to the Veteran's PTSD, and an explanation of what the score means.  

The examiner should comment as to whether it is possible to distinguish the symptoms and effects of the service-connected PTSD, from those attributable to any other diagnosed psychiatric disability which is not service-connected.  If it is not medically possible to do so, the examiner should clearly so state, indicating that the above-noted findings are indicative of the Veteran's overall impairment associated with his service-connected PTSD.  In this regard, the claims file includes diagnoses of depressive disorder, not otherwise specified; alcohol abuse/dependence, in partial remission; panic disorder; and mood disorder secondary to general medical conditions.  

The examiner is advised that an April 2010 VA examiner opined that the majority of the Veteran's depression was related to his PTSD and experiences in Vietnam, although a portion of his depression might also be attributable to his difficult surgeries which resulted in numerous chronic medical problems.

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

6.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to evaluate his service-connected transient blurred vision.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

The examiner should comment as to whether it is possible to distinguish the symptoms and effects of the service-connected transient blurred vision related to fluctuations in blood glucose levels associated with type II diabetes mellitus, from those attributable to any other diagnosed disability which is not service-connected.  If it is not medically possible to do so, the examiner should clearly so state, indicating that the above-noted findings are indicative of the Veteran's overall impairment associated with his service-connected transient blurred vision related to fluctuations in blood glucose levels associated with type II diabetes mellitus.  

As indicated above, the examiner should review the record; however, his or her attention is drawn to the following:

* A September 2010 VA examiner commented that the Veteran had a history of slightly blurred distance vision and correction derived in January 2010 did not work well.  Follow-up examination in June 2010 found a different distance prescription.  The VA examiner opined that the discrepancy appeared to be the result of a fluctuation in blood glucose levels at the time of his initial examination, which was the result of his service-connected diabetes mellitus.  The examiner noted that this condition was common in diabetics and is transient in nature.  He added that the Veteran had near blur as well, which was the result of age-appropriate presbyopia and not the result of the Veteran's diabetes mellitus.  

* The Veteran was seen in the eye clinic at the Fort Wayne VAMC in December 2010 for an annual diabetes mellitus examination.  The diagnoses were diabetes without retinopathy, refractive error, and meibomian gland dysfunction with dry eye syndrome.  In regard to the refractive error, the optometrist commented that the Veteran had noted some fluctuations in blood glucose, but his A1C was fairly good and the refractive shifts had occurred in different directions between the eyes, as opposed to his previous hyperopic shifts.  

* A November 2011 VA eye clinic note reflects that the Veteran's vision seemed to have decreased.  The assessment was diabetes without retinopathy; early cataracts, not affecting vision at this time; and history of dry eye symptoms without success using multiple therapies, dry eye symptoms minimal on examination.  The optometrist stated that the Veteran's chief complaint was likely related to poor diabetic control causing fluctuating vision.  He commented that a binocular vision problem was not likely as the problem occurred at both distance and near and fluctuated from day to day.  He added that dry eye syndrome was unlikely as cornea/tear film appeared normal on examination.  

* The Veteran underwent VA eye examination in January 2012.  The examiner remarked that the Veteran had no eye condition secondary to type II diabetes mellitus and had no ocular pathology secondary to diabetes or otherwise.  

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

7.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to determine whether he has peripheral neuropathy as a complication of diabetes mellitus.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

Following examination of the Veteran and a review of the record, the examiner should identify any peripheral neuropathy in the upper and/or lower extremities.  In regard to any peripheral neuropathy in each extremity, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy in that extremity is a complication of diabetes mellitus, including whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected diabetes mellitus.  

If it is determined that the Veteran has peripheral neuropathy in any extremity which is a complication of, or which is caused or aggravated by diabetes mellitus, the examiner should describe all symptoms (and associated impairment of function) related to each disability, and should identify the nerve(s) affected and opine as to whether such impairment is equivalent to mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerves.

The examiner should comment as to whether it is possible to distinguish the symptoms and effects of any peripheral neuropathy which is determined to be a complication of or caused or aggravated by diabetes mellitus, from those attributable to any other diagnosed disability, to include lumbar radiculopathy.  If it is not medically possible to do so, the examiner should clearly so state, indicating that the above-noted findings are indicative of the Veteran's overall impairment associated with peripheral neuropathy which is a complication of or caused or aggravated by diabetes mellitus.  

As indicated above, the examiner should review the record; however, his or her attention is drawn to the following:

* A January 2012 VA examiner indicated that the Veteran had diabetic peripheral neuropathy as a complication of diabetes mellitus.  On VA peripheral neuropathy examination performed the same date, the Veteran reported burning, numbness, and tingling in the feet.  The examiner indicated that the Veteran did not have an upper extremity diabetic peripheral neuropathy, but that he had a lower extremity diabetic peripheral neuropathy.  In the section of the examination worksheet provided to identify the nerve affected and the severity, the examiner reported, however, that the sciatic and femoral nerves were normal, bilaterally.  

* A March 2013 EMG revealed electrical findings compatible with peripheral neuropathy, mainly involving both legs, left more than right, and lumbar radiculopathy.  

* An April 2013 VA treatment record documents that the Veteran had peripheral neuropathy, mainly involving both legs, left more than right.  

* In an April 2013 diabetes mellitus impairment questionnaire, the Veteran's VA physician reported that the Veteran suffered from peripheral neuropathy secondary to his diabetes mellitus.  She characterized the severity of this condition as moderate in the upper extremities and severe in the lower extremities.  The physician stated that her conclusion was supported by the March 2013 EMG.  

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

8.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to determine whether he has skin disorder as a complication of diabetes mellitus.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

Following examination of the Veteran and a review of the record, the examiner should identify any current skin disorder.  In regard to each OR any diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the skin disorder is a complication of diabetes mellitus, including whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected diabetes mellitus.  

If it is determined that the Veteran has a skin disorder which is a complication of, or which is caused or aggravated by diabetes mellitus, the examiner should describe all symptoms (and associated impairment of function) related to such disability.  

In rendering the requested opinion, the examiner should consider the January 2012 VA diabetes mellitus examiner's finding that the Veteran had a skin condition that was at least as likely as not due to diabetes mellitus.  

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

9.  Next, after all of the above actions have been completed, the Veteran should be afforded a VA examination to obtain an opinion regarding the impact of his service-connected disabilities on his employability.  

All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history should be obtained.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, in the aggregate (including the effects of medications used to treat these service-connected disabilities), would preclude him from obtaining and retaining substantially gainful employment consistent with his education and occupational experience.

As indicated above, the examiner should review the record; however, his or her attention is drawn to the following:

* The record reflects that the Veteran completed three years of high school and has prior work experience as a bartender, private investigator, and as a bar/restaurant manager.  

* The Veteran reported during an April 2010 VA PTSD examination that, following his 2005 surgery, he had to stop working due to physical problems from his surgery.  In discussing his difficulty with concentration, the Veteran reported that he tried to do some very part-time work as a private investigator but had a hard time focusing on those details.  

* During VA mental health treatment in June 2011, the psychologist observed that the Veteran had medical problems in addition to moderate to severe PTSD, depression, and panic attacks.  Therefore, he opined, it was more likely than not that the Veteran was not competitive in the job market and would be unable to maintain employment if given a job, not only because of impulsiveness, anger, impatience, jumpiness, problems with concentration and memory, and severe sleep disturbances, but also because of his numerous surgeries and health problems.  

* In January 2012, a VA examiner opined that the Veteran's eye condition did not impact his ability to work.  This examiner also opined that the Veteran's vascular condition impacted his ability to work in that he could not walk more than a few feet at a time.  However, the examiner opined that the Veteran's diabetes mellitus (and complications of diabetes mellitus) did not impact his ability to work.  Rather, he stated that the Veteran did not work due to abdominal pain, hip, and back conditions.  He further indicated that the Veteran's kidney condition did not impact his ability to work.  

* An August 2012 VA mental health note includes the Veteran's psychologist's statement, "It remains clear that this veteran remains non-competitive in the job market and would not be able successfully to maintain employment.  This is evidence in his moderate to severe impairment in his psychosocial functioning -- secondary to the problems created by the symptoms of his PTSD and related comorbid disorders."

* A September 2012 VA mental health treatment note includes the Veteran's psychologist's statement that the Veteran continued to experience serious impairment to his overall psychosocial functioning and opinion that there was no way the Veteran could maintain a job.  

* In January 2013, the Veteran's VA psychiatrist rendered diagnoses of PTSD, panic disorder without agoraphobia, and mood disorder secondary to general medical condition.  The psychiatrist opined that the Veteran was unemployable secondary to chronic PTSD symptoms and issues with anxiety, depression, and poor coping skills.  

* A February 2013 VA treatment record reflects that the Veteran experienced continuing moderate to serious levels of impairment in his psychosocial functioning, which had a profound negative effect on his employability.  The psychologist opined that the Veteran's chronic PTSD, depression, and panic, along with his inability to work with others and his poor coping skills, was disabling and would prevent him from maintaining successful employment.  The psychologist continued, "In addition, his physical/medical problems and on top of his strong medications with their side effects reinforces my professional opinion that this Veteran is unemployable."  

* During treatment in April 2013, the VA psychologist stated that the Veteran's significant symptoms and problems characteristic of complex combat-related PTSD persisted with the Veteran and continued to create a moderate to serious level of impairment in his psychosocial functioning; had a hugely damaging effect on his ability to relate to others; and had a profoundly negative effect on his employability.

* An April 2013 VA mental health treatment record reflects diagnoses of PTSD, panic disorder without agoraphobia, and mood disorder secondary to general medical condition.  The psychiatrist opined that the Veteran was currently unemployable secondary to physical problems and problems associated with PTSD, including avoidance, anxiety, nightmares, flashbacks, intrusive memories, and limited coping skills.  

* Later in April 2013, a private psychologist, Dr. F.B., evaluated the Veteran.  The psychologist stated that the Veteran experienced symptoms of PTSD and his extensive mental health issues lead to a deficit in his functional capacities and his inability to work in an employment capacity.  The Axis I diagnoses following evaluation were PTSD, major depressive disorder, and panic disorder without agoraphobia.  Dr. F.B. stated that the Veteran exhibited extreme symptoms of PTSD, panic disorder, and depressive disorder and his psychological issues were preventing him from performing daily work activities and preventing him from carrying out required activities of daily living.  The psychologist opined that the Veteran was unable to complete occupational responsibilities and commented that, due to his current psychological impairments, he was unable to perform work activities on a sustained regular basis and, therefore, was considered disabled.  

* Also in April 2013, Dr. F.B. completed a psychiatric impairment questionnaire, in which she stated that the Veteran could not perform work activities due to panic attacks, anxiety, inattention, memory loss, and avoidance of people, and interactions.  She reported that his impairments would cause him to absent from work more than three times a month and opined that he was not capable of full-time work due to PTSD symptoms.  

* In her April 2013 diabetes mellitus impairment questionnaire, the Veteran's VA physician commented that the Veteran had had neuropathy and diabetes mellitus and responded negatively to the question of whether, as a result of his service-connected diabetes mellitus and secondary impairments, the Veteran would be capable of performing gainful employment.  

All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report.

10.  Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

11.  Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for 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 that 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 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).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs