Citation Nr: 1336364 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-26 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation (rating) in excess of 20 percent for diabetes mellitus, type II, with diabetic retinopathy, erectile dysfunction, and diabetic nephropathy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1968 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2012, the Board issued a decision denying a rating in excess of 20 percent for diabetes mellitus, type II, with diabetic retinopathy, erectile dysfunction, and diabetic nephropathy, and ratings in excess of 10 percent for bilateral peripheral neuropathy of the lower extremities. The Veteran appealed the July 2012 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court endorsed a February 2013 joint motion for partial remand, vacated the portion of the July 2012 Board decision that denied a rating in excess of 20 percent for diabetes mellitus (type II, with diabetic retinopathy, erectile dysfunction, and diabetic nephropathy), and remanded the matter for compliance with the instructions in the joint motion. The joint motion for partial remand states that the appeals as to the ratings for bilateral peripheral neuropathy of the lower extremities were abandoned. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The parties to the February 2013 joint motion for partial remand agreed that the Board's analysis of the evidence and the applicable Diagnostic Code were flawed. Diabetes mellitus, type 2, is rated under Diagnostic Code (DC) 7913. As relevant to this case, ratings in excess of 20 percent require "regulation of activities." 38 C.F.R. § 4.119 (2013). See also Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). While the July 2012 Board decision found that the Veteran had not been prescribed or advised to avoid strenuous occupational and recreational activities, the September 2007 VA examination report on which the Board relied contained a "yes" response from the VA examiner as to whether the Veteran was so restricted in his ability to perform strenuous activities. The joint motion states that the Board should determine whether the VA examiner's response is evidence of regulation of activities or whether clarification or a new VA examination is required. The Board's July 2012 decision noted that the indication of restriction in ability to perform strenuous activities appeared in the medical history portion of the September 2007 VA examination report. In essence, the examiner asked the Veteran about whether he was restricted in performing strenuous activities and the Veteran answered "yes." The regulation requires that such a restriction be prescribed or advised. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). The VA examination report did not indicate whether or not the restriction was the result of medical prescription or advice. The VA examination report's silence on the question of whether restriction in strenuous activities was the result of medical prescription or advice cannot be taken as proof that regulation of activities does not exist, that is, that it was not the result of medical prescription or advice. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Veteran's VA, private, and SSA records do not reveal notations of such prescriptions or advice. Given that the record on appeal does not fully describe all the findings necessary for application of ratings criteria, the Board finds that remand is necessary for a new examination. See 38 C.F.R. § 3.326(a) (2013). The Board observes that the Veteran has been receiving treatment from VA on an ongoing basis for his diabetes and its complications, including retinopathy and nephropathy. The records on file reflect treatment only through September 2007. To correctly assess the Veteran's current disability, all records of treatment from September 2007 to the present should be obtained and considered. The February 2013 joint motion also noted that the issue of TDIU had been raised by a May 2012 brief from the Veteran's representative, so should be included as an issue on appeal. The joint motion noted that TDIU is an alternative theory of entitlement in the context of the increased rating claim, and that the Board's failure to address the TDIU issue was error. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The issue of a TDIU is inextricably intertwined with the other remanded issue of increased rating for diabetes mellitus and associated complications; therefore, adjudication of TDIU must be deferred pending completion of the proposed development on the issue of increased rating for diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The Veterans Claims Assistance Act of 2000 (VCAA) also requires that VA provide notice and assistance to a claimant in obtaining evidence needed to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2013). The RO did not address the question of VCAA notice regarding the TDIU issue in the first instance, and the Veteran has not been afforded appropriate notice or assistance. Accordingly, the issues of a higher rating for diabetes mellitus (type 2, with diabetic retinopathy, erectile dysfunction, and diabetic nephropathy) and a TDIU are REMANDED for the following action: 1. Issue the Veteran VCAA notice and claim form for the issue of TDIU. 2. Obtain the Veteran's VA treatment records from September 2007 to the present for treatment concerning diabetes mellitus and its complications (type 2, diabetic retinopathy, erectile dysfunction, and diabetic nephropathy). All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. Schedule the Veteran for a VA examination to assist in determining the current nature and severity of his diabetes mellitus (type 2, with diabetic retinopathy, erectile dysfunction, and diabetic nephropathy). Sufficient evaluations should be scheduled to evaluate the Veteran's symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. A) The examiner should state whether the Veteran's service-connected diabetes mellitus has resulted in the medical prescription or advice of regulation of activities, which is defined as avoidance of strenuous occupational and social activities. B) The examiner should also describe the extent to which the Veteran's service-connected diabetes mellitus and its complications affect the Veteran's ability to obtain or retain substantially gainful employment (without regard to his age or nonservice-connected disabilities). 4. Then, the issue of increased rating for diabetes mellitus should be readjudicated and the issue of a TDIU should be adjudicated in the first instance. If any of the benefits sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).