Citation Nr: 1331045 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-09 991A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating for peripheral neuropathy in the left lower extremity, currently rated as 20 percent disabling. 2. Entitlement to an increased disability rating for peripheral neuropathy in the right lower extremity, currently rated as 20 percent disabling. 3. Entitlement to a compensable disability rating for diabetic retinopathy prior to June 24, 2009. 4. Entitlement to an effective date earlier than May 2, 2012, for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran has raised multiple claims over time, and the claims have different procedural histories. In order to clarify what issues are before the Board on appeal and the status of other issues that have been raised, the Board will review the procedural history. Several of the Veteran's service-connected disabilities are related to diabetes mellitus. In August 2002 the Veteran submitted a claim for service connection and compensation for diabetes. In a February 2003 rating decision the RO granted service connection for diabetes. The RO made service connection effective August 22, 2002, and assigned a disability rating of 20 percent. In December 2005 the Veteran requested reevaluation of his diabetes. He stated that he had eye problems and trouble with balance and indicated that each of these might be related to diabetes. In an April 2006 rating decision the RO found that the Veteran had peripheral neuropathy in both lower extremities related to diabetes. The RO granted service connection and assigned a 20 percent rating for neuropathy in the left lower extremity and a 20 percent rating for neuropathy in the right lower extremity. The RO made service connection effective December 29, 2005. In the April 2006 rating decision the RO also granted service connection, effective December 29, 2005, for diabetic retinopathy. The RO assigned a 0 percent rating for the retinopathy. The RO changed the description of service-connected diabetes to diabetes with diabetic retinopathy. For this combined condition, the RO continued the 20 percent rating that had been in effect for diabetes alone. The RO indicated that establishment of service connection for lower extremity neuropathy and the retinopathy were in response to the Veteran's claim for service connection for loss of equilibrium related to diabetes. In the April 2006 rating decision the RO also granted service connection, effective December 29, 2005, for impotency associated with diabetes. The RO assigned a 0 percent disability rating. The RO also granted special monthly compensation based on loss of use of a creative organ. The RO denied service connection for hypertension, pes planus, and fungus infection and deformities of the toenails. In February 2007 the Veteran filed a claim for an increased rating for diabetes and for a TDIU. In a July 2007 rating decision the RO continued the 20 percent rating for peripheral neuropathy in the left lower extremity, the 20 percent rating for peripheral neuropathy in the right lower extremity, the 20 percent rating for diabetes with diabetic retinopathy, and the 0 percent rating for impotency. The RO denied a TDIU. Briefly, a claimant initiates an appeal of a VA benefits decision by submitting a notice of disagreement (NOD) within one year after the mailing of the notice of the decision. 38 U.S.C.A. § 7105 (West 2002). Then VA issues a statement of the case (SOC). Id. A claimant perfects or completes an appeal by submitting a timely substantive appeal after VA issues the SOC. Id. In July 2007 the Veteran filed an NOD with the July 2007 rating decision. In February 2008 the RO issued an SOC addressing the claims for a TDIU and for higher ratings for peripheral neuropathy in the left lower extremity, peripheral neuropathy in the right lower extremity, diabetes with diabetic retinopathy, and impotency. In April 2008 the Veteran submitted a substantive appeal indicating that he was only appealing the issues of a TDIU and higher ratings for peripheral neuropathy in the left lower extremity, peripheral neuropathy in the right lower extremity, and diabetes. The Veteran's submission of a substantive appeal regarding those issues perfected an appeal regarding those issues, placing those issues on appeal before the Board. As the Veteran did not include the issue of the rating for impotency in his substantive appeal, he did not perfect an appeal regarding that issue and it is not before the Board on appeal. In a December 2009 rating decision the RO established separate evaluations for diabetes and for diabetic retinopathy. The RO continued a 20 percent rating for diabetes. The RO assigned a separate 20 percent rating for diabetic retinopathy, effective June 24, 2009. The RO also granted service connection, effective May 1, 2009, for peripheral neuropathy, associated with diabetes, of the left upper extremity and right upper extremity. The RO assigned a 10 percent rating the left upper extremity neuropathy and a separate 10 percent rating for the right upper extremity neuropathy. In an August 2011 decision the Board denied increased ratings for diabetes and for peripheral neuropathy in the left and right lower extremities. The Board separated the issue of the evaluation of diabetic retinopathy into two issues: (1) the issue of a compensable (higher than 0 percent) rating before June 24, 2009, and (2) the issue of a rating higher than 20 percent from June 24, 2009, forward. The Board denied entitlement to a rating higher than 20 percent for diabetic retinopathy from June 24, 2009, forward. The Board remanded, to the RO the Appeals Management Center (AMC) in Washington, DC, the issue of entitlement to a compensable rating for diabetic retinopathy prior to June 24, 2009. The Board also remanded the issue of entitlement to a TDIU. The Veteran appealed the Board's August 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012 the Veteran and VA (the parties in the appeal) filed with the Court a Joint Motion for Remand (JMR), asking that the Court remand of the part of the Board's decision that denied a ratings higher than 20 percent each for peripheral neuropathy in the left and right lower extremities. In the JMR the Veteran indicated that he withdrew his appeal of the Board's denial of a higher rating for diabetes mellitus and a higher rating for diabetic retinopathy from June 24, 2009, forward. The parties indicated that they did not wish to disturb the Board's remand of the issues of a TDIU and a compensable rating for diabetic retinopathy before June 24, 2009. The Court granted the Joint Motion in August 2012. The Court explained that it was remanding the issues of higher ratings for peripheral neuropathy of the left and right lower extremities, and dismissing the appeal as to the remaining issues. In an October 2012 rating decision the AMC granted a TDIU, effective May 2, 2012. In a November 2012 letter the Veteran's representative stated that the issues of a rating higher than 20 percent for diabetes, ratings higher than 20 percent each for peripheral neuropathy of the left and right lower extremities, and a rating higher than 20 percent for diabetic retinopathy were on appeal from the Court awaiting a Board decision. In an April 2013 letter the Veteran's representative argued that a TDIU was warranted for the Veteran effective from a date earlier than the date the RO assigned. The Veteran appealed to the Board the RO's denial of ratings higher than 20 percent each for peripheral neuropathy of the left and right lower extremities. The Board denied higher ratings. The Veteran appeal the Board's denial to the Court. The Court remanded the Board's decision. Thus the appeal from the RO denial is now back before the Board. The Veteran appealed to the Board the RO's assignment of a 20 percent rating for diabetes and diabetic retinopathy together. After the RO assigned a separate 20 percent rating for diabetic retinopathy from June 24, 2009, the Veteran continued his appeal. The Board remanded to the RO via the AMC the issue of the retinopathy rating before June 24, 2009. The Veteran has continued his appeal of the rating for that period. That issue remains before the Board on appeal. The Board denied a rating for retinopathy higher than 20 percent from June 24, 2009, forward. The Veteran appealed that denial to the Court. In the JMR the Veteran withdrew that issue from appeal to the Court. The Court dismissed the appeal of that issue to the Court. Subsequently the Veteran's representative stated that the Court remanded that issue to the Board for resolution. That statement from the representative was erroneous, as the Veteran withdrew that issue and the Court dismissed it. The Board denied the claim. The Veteran appealed it to the Court and later withdrew the claim. The Court dismissed the appeal. The issue therefore is not before the Board. If the Veteran desires to pursue a rating for retinopathy higher than 20 percent for the period from June 24, 2009, forward, the way to do so would be to submit to the RO a new claim for an increased rating. Similarly, with respect to a claim for a rating higher than 20 percent for diabetes, the Veteran appealed the Board's denial to the Court. Then, in the JMR, the Veteran withdrew the appeal of that issue to the Court. Shortly thereafter the Veteran's representative erroneously wrote that the Court remanded that issue to the Board for resolution. The Board finds that, after the Board denied the appeal to the Board and the Court dismissed the appeal to the Court, the issue is not before the Board. The Board informs the Veteran that if he wants to pursue a new claim for an increased rating for diabetes he may file such a claim with the RO. With regard to a TDIU, the Veteran appealed the RO's denial of a TDIU to the Board. The Board remanded the issue to the RO via the AMC. The AMC reviewed additional evidence and granted a TDIU. Less than a year after that grant the Veteran asserted that the effective date of the TDIU should be earlier. That statement constitutes an NOD with the effective date assigned for the TDIU. As explained in the remand section, below, the Board will remand the effective date question for the RO to issue an SOC. At present, then, the issues on appeal before the Board are, as noted on the first page of this decision, a disability rating higher than 20 percent for peripheral neuropathy in the left lower extremity, a disability rating higher than 20 percent for peripheral neuropathy in the right lower extremity, and a disability rating higher than 0 percent for diabetic retinopathy for the period prior to June 24, 2009. In addition, the Veteran has initiated an appeal for an earlier effective date for a TDIU. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issues of a compensable rating for diabetic retinopathy prior to June 24, 2009, and an earlier effective date for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Peripheral neuropathy in the left lower extremity is manifested by sensory impairment, diminished reflexes, and balance impairment which produce overall impairment that approximates moderately severe incomplete paralysis of the sciatic nerve. 2. Peripheral neuropathy in the right lower extremity is manifested by sensory impairment, diminished reflexes, and balance impairment which produce overall impairment that approximates moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Peripheral neuropathy in the left lower extremity meets the criteria for a 40 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2013). 2. Peripheral neuropathy in the right lower extremity meets the criteria for a 40 percent disability rating. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Ratings for Lower Extremity Peripheral Neuropathy The Veteran essentially contends that the effects of peripheral neuropathy in his left and right lower extremities warrant disability ratings higher than the existing 20 percent rating for each extremity. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Under the rating schedule neurological conditions are to be rated based on impairment in motor, sensory, or mental functions, with consideration of factors such as complete or partial loss of use of extremities and disturbance of gait. 38 C.F.R. § 4.120. In rating peripheral nerve disorders attention should be given the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Peripheral neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. It is to be rated on the scale provided for the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating that may be assigned for sciatic nerve neuritis not characterized by the changes described above is the rating for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia is usually characterized by dull and intermittent pain, of typical distribution so as to identify the nerve. It is to be rated on the scale for the affected nerve, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Incomplete paralysis with peripheral nerve disorder indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The RO has evaluated the peripheral neuropathy in the Veteran's lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. That code provides for an 80 percent rating for complete paralysis, such that the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. For incomplete paralysis, Diagnostic Code 8520 provides for assigning ratings of 60 percent if the incomplete paralysis is severe, with marked muscular atrophy, 40 percent if moderately severe, 20 percent if moderate, and 10 percent if mild. Private treatment records reflect that the Veteran was diagnosed with diabetes in 1985. Private and VA records show ongoing treatment for diabetes. VA podiatrists noted diabetic onychomycosis from 2000 forward. On a VA diabetes examination in February 2003 there were no light touch or pain changes in either foot. The examiner stated that there was no evidence of any peripheral neuropathy. The Veteran indicated that he worked full time at a newspaper. From 2005 forward VA podiatrists noted that the Veteran's infected toenails were painful and caused limitation of walking. On VA diabetes examination in March 2006 the Veteran indicated that he continued to work for a newspaper as a paper handler. He reported that he had numbness and tingling in his feet that occurred rarely. The examiner tested for peripheral neuropathy and found that the Veteran had moderate peripheral neuropathy in the bilateral toes, feet, ankles, and calves to just below the knees. On each foot, the skin, warmth, and pulses were normal. Hair growth was decreased. In each ankle pulses and reflexes were normal. In each knee reflexes were normal. On each foot the toenails had severe fungus infection with abnormalities. The examiner concluded that the Veteran had moderate peripheral neuropathy of the lower extremities. In private treatment in January 2007 the Veteran reported a five year history of weakness and difficulty balancing with walking. He stated that he had experienced numbness and tingling in his feet for several years, and that those symptoms had worsened in recent months. Treating clinicians found that the Veteran had a wide based gait and a very poor tandem gait. Reflexes and sensation were absent below the knees. Testing and imaging were performed, and clinicians concluded that the Veteran had lower extremity peripheral neuropathy due to diabetes, and that there was a long history of poor control of the diabetes. The Veteran was admitted for a few days to stabilize the diabetes. The United States Social Security Administration (SSA) found, in a February 2007 determination, that the Veteran had been disabled from December 2006, with a primary diagnosis of diabetes mellitus and a secondary diagnosis of diabetic and other neuropathy. In VA treatment in April 2007, it was noted that the Veteran had poor balance, and that there was a question as to whether the poor balance was due to diabetic neuropathy. On VA diabetes examination in April 2007 the Veteran indicated having had hospital treatment in 2007 for problems with balance. He stated that he had left his paper handling job and was unemployed. The Veteran reported having paresthesias in both feet. He stated that numbness and tingling in his feet were intermittent, with remissions, and had developed slowly over time. The examiner found that the left and right lower extremities each had normal temperature and pulses. The examiner found no functional motor impairment of either lower extremity. In the left lower extremity, sensation of vibration was decreased, and other sensations were normal. The examiner found normal sensory function in the right lower extremity. Knee and ankle reflexes were diminished bilaterally. The examiner described the Veteran's peripheral neuropathy as very mild at best. In an October 2007 statement, the Veteran reported that his balance was worsening. He reported that he lost his job because of his problems with balance, and that his problems with balance made it more difficult to do everyday chores. In statements received in April 2008 the Veteran wrote that he had received treatment for his problems with balance and stability. He stated that his diabetes made him unsteady and caused him to leave his job in December 2006. In VA treatment in January 2008 the Veteran reported trouble with balance. He was provided with a cane to help with walking. In September 2008 the Veteran reported that his right lower extremity was weaker than his left. In April 2009 he stated that diabetes made his legs weak, so sometimes he used a cane for balance. In January 2010 it was noted that he walked using a cane. On VA diabetes examination in May 2009 it was noted that the Veteran previously worked for a newspaper and stopped working in 2006. The Veteran reported that he stopped working because of his problems with balance. He related a history of intermittent numbness and tingling in his feet and toes since 2000. He stated that he had occasional mild pain in his feet. He related having some weakness in his lower extremities, and stated that his legs got tired easily. He indicated that the symptoms had worsened over time. He described the neuropathy as moderate. He stated that the neuropathy did not interfere with his daily activity. The examiner observed that the Veteran had severe pes planus bilaterally. In both lower extremities pulses, temperature, strength, and reflexes were normal. Hair growth was decreased. Testing showed moderate peripheral neuropathy bilaterally from the mid calves to the toes. The examiner indicated that the Veteran's lower extremity peripheral neuropathy should not produce functional limitations in any kind of occupational environment. On VA diabetes examination in June 2009, the Veteran indicated that he was not employed. He stated that his lower extremity peripheral neuropathy was manifested by paresthesias in his lower legs. The examiner observed that both lower extremities had thin skin, absent hair, and dystrophic nails. The temperature, color, and pulses were normal in the extremities bilaterally. The patellar and Achilles deep tendon reflexes were hypoactive bilaterally. In the August 2011 decision the Board discussed examination findings. The Board concluded that some symptoms the Veteran reported were wholly sensory. The Board indicated that the sensory symptoms and other symptoms noted on examinations did not approximate moderately severe peripheral neuropathy. The Board concluded that the neuropathy symptoms produced moderate neurologic deficit and thus did not warrant ratings higher than 20 percent for each lower extremity. In VA treatment in May 2012 a clinician noted that the Veteran used a cane and had an abnormal gait. The clinician expressed the opinion that the Veteran's disabilities prevented him from holding employment that required standing and walking, and that his disabilities prevented him from holding any type of regular employment. In the August 2012 JMR the parties (VA and the Veteran) contested the Board's characterization of the manifestations of lower extremity peripheral neuropathy as "wholly sensory." The parties suggested that hypoactive reflexes and absent ankle jerk shown on the June 2009 VA examination were evidence that there was nonsensory impairment in addition to sensory impairment. The parties stated that the Board had not stated adequate reasons and bases why the neuropathy did not approximate moderately severe partial paralysis and warrant ratings higher than 20 percent. Examination and treatment records indicate that the peripheral neuropathy in the Veteran's lower extremities is manifested by sensory impairment such as numbness and tingling, and by other types of impairment such as diminished reflexes. As the effects of the neuropathy are not limited to sensory effects alone, the direction under 38 C.F.R. § 4.124a to limit the rating to that for mild or moderate partial paralysis does not apply in this case. The Veteran has experienced difficulty with balance and has developed limitations in standing and walking. He asserts, and some clinicians have indicated, that these types of impairment are related to his lower extremity peripheral neuropathy. While the evidence does not clearly establish and explain a connection between the neuropathy and his balance problems, the evidence provides at least equivocal support for a connection. Taking into account peripheral neuropathy manifestations of numbness, tingling, diminished reflexes, and trouble with balance, the impairment due to the neuropathy is reasonably consistent with moderately severe incomplete paralysis. The Board therefore grants ratings of 40 percent each for peripheral neuropathy in the left and right lower extremities. The Veteran's lower extremity peripheral neuropathy does not produce impairment that warrants ratings higher than 40 percent for each lower extremity. Medical records have not shown marked or even any muscular atrophy, or other impairment that is consistent with severe incomplete paralysis. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). Peripheral neuropathy of the Veteran's left and right lower extremities has not required frequent hospitalizations. The evidence indicates that the lower extremity neuropathy is among the disabilities that affect his capacity for employment. The evidence does not tend to show that the lower extremity neuropathy, considered apart from other disabilities, interferes with his capacity for employment to an extent that rises to the level of marked. In any case, the 40 percent ratings the Board is assigning in this decision contemplate a fairly serious level of disability. The rating criteria provide for higher ratings for even greater impairment. Overall, the Board concludes that the regular rating criteria are adequate to evaluate the left and right lower extremity peripheral neuropathy, and that it is not necessary to refer the rating of those disabilities for consideration of extraschedular ratings. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case the RO has already granted a TDIU for the Veteran, so it is not necessary to consider whether the record indirectly raises a TDIU claim. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran provided the Veteran with VCAA notice in letters issued in October 2002, February 2006, February 2007, March 2008, April 2009, and May 2009. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection and increased disability ratings. The RO informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The Veteran's claim file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, and statements from the Veteran. The Veteran has had medical examinations performed by qualified clinicians who reviewed the Veteran's claims file. The examiners explained their findings and conclusions. The examinations and examination reports that address the Veteran's left and right lower extremity peripheral neuropathy are adequate for the purpose of evaluating those disabilities. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is addressing at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to a 40 percent disability rating for peripheral neuropathy in the left lower extremity is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Entitlement to a 40 percent disability rating for peripheral neuropathy in the left lower extremity is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND The Board is remanding the issues of a higher rating for diabetic retinopathy prior to June 24, 2009, and an earlier effective date for a TDIU. A second remand of the retinopathy rating issue is needed because the Board's instructions in the August 2011 remand were not sufficiently fulfilled. In August 2011, the Board remanded the issue of a higher rating for diabetic retinopathy prior to June 24, 2009. The Board noted that the report of a June 2009 VA examination of the Veteran's eyes addressed his visual fields. The condition of the Veteran's visual fields was the basis for the rating that was assigned from June 24, 2009, for the Veteran's diabetic retinopathy. The Board instructed that on remand the AMC or RO should seek treatment records that would help to show the effects of the Veteran's retinopathy prior to June 24, 2009. The Board instructed that, whether or not additional records were obtained, the AMC or RO was to obtain a retrospective opinion as to the severity of the Veteran's diabetic retinopathy before June 24, 2009. The AMC wrote to the Veteran and asked him to identify or provide medical records regarding his diabetic retinopathy that were not already in his claims file. Additional VA medical records were obtained. The Veteran had a VA examination of his eyes in May 2012. The report of that examination addressed the current condition of the Veteran's eyes, and did not include any retrospective opinion addressing the condition of his eyes before June 24, 2009. The VA physician who examined the Veteran in May 2012 provided addenda to the examination report in July 2012 and September 2012, but neither addendum included a retrospective opinion addressing the condition of the Veteran's eyes before June 24, 2009. The AMC or RO returned the file to the Board for consideration. The Court has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. Stegall v. West, 11 Vet. App. 268 (1998). As the AMC and RO did not obtain a retrospective opinion as instructed, the Board will remand the retinopathy rating issue again to obtain such an opinion. As noted above, in an October 2012 rating decision the AMC granted a TDIU, effective May 2, 2012. The Veteran submitted in April 2013 a statement that constitutes a timely NOD with the effective date of the TDIU. When a claimant files a timely NOD, the agency of original jurisdiction (AOJ) (in this case, the AMC) must prepare and send to the claimant an SOC. 38 C.F.R. § 19.26 (2013). The AMC has not sent the Veteran an SOC addressing his appeal of the effective date for the TDIU. The Court has indicated that when a claimant submits an NOD, and the AOJ does not issue an SOC on the issues addressed by the NOD, the Board should remand the issue to the AOJ for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board therefore remands the TDIU effective date issue to the AMC to issue an SOC. Accordingly, the issue is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to address the condition of the Veteran's eyes prior to June 24, 2009. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the available evidence and examine the Veteran. Ask the examiner to provide a retrospective opinion, that is, an opinion as to the extent and effects of the Veteran's diabetic retinopathy during a past period, specifically, the period from February 22, 2006, to June 23, 2009. Ask the examiner to report, if possible, and otherwise to estimate, what, from February 22, 2006, to June 23, 2009, was the likely extent of contraction, if any, from normal for each of the eight principal meridians in each eye, in degrees (as described in the VA rating schedule at 38 C.F.R. §§ 4.76, 4.76a (Table III, Figure 1)). Ask the examiner to provide this opinion even if direct evidence from the relevant period is not available. Ask the examiner to explain the reasoning leading to the conclusions. 2. Issue to the Veteran and his representative a statement of the case with regard to the issue of entitlement to an effective date earlier than May 2, 2012, for a total disability rating based on individual unemployability. Advise the Veteran and his representative of the time limit in which he may file a substantive appeal as to that issue. If that appeal is timely perfected, return the issue to the Board for appellate consideration, if otherwise in order. 3. Review the claim for a higher, compensable disability rating for diabetic retinopathy prior to June 24, 2009. If that claim remains less than fully granted, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs