Citation Nr: 1337329 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-34 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from November 1979 to February 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the RO which, in part, granted service connection for diabetes mellitus and assigned a 20 percent evaluation; effective from October 22, 2004, the date of receipt of claim, and denied service connection for an acquired psychiatric disorder. The Board remanded the appeal for additional development in September 2011. In an August 2012 rating decision, the RO granted service connection for major depressive disorder and assigned a 50 percent evaluation from October 22, 2004, and a 70 percent evaluation from October 24, 2011. The Veteran and his representative were notified of this decision and did not express dissatisfaction with the ratings assigned. Accordingly, this matter is no longer in appellate status and will not be addressed in this decision. In an October 2013 rating decision, the RO granted entitlement to service connection for below the knee amputation, left leg (claimed as right leg) associated with diabetes mellitus, assigning a 40 percent rating, effective December 7, 2012, under 38 C.F.R. § 4.71a, Diagnostic Code 5165. The RO also granted entitlement to special monthly compensation based on anatomical loss of one foot from December 7, 2012, as well as awarded entitlement to automobile and adaptive equipment. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. REMAND The Board's review of the claims file reveals that further development on these matters is warranted. As an initial matter, in an April 2012 letter, the Veteran advised VA that he was awarded disability benefits from the Social Security Administration (SSA) in September 2011. The Court has held that where there is notice the Veteran is receiving SSA disability benefits VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents when there exists a reasonable possibility that the records could help the Veteran substantiate the claim for benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As the SSA records are not currently of record and in light of the complexities of the facts of this case, the Board will obtain the Veteran's SSA records as they are potentially relevant to the matters on appeal. The Veteran is currently assigned a 20 percent evaluation for diabetes mellitus under 38 C.F.R. § 4.119, Diagnostic Code 7913, which provides for a 100 percent evaluation when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. A 60 percent evaluation requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 40 percent evaluation is assigned for diabetes requiring insulin, restricted diet, and regulation of activities. A 20 percent rating is assigned for diabetes requiring insulin and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). Complications of diabetes mellitus are to be evaluated separately 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). In this case, the RO in San Diego, California, denied service connection for end stage renal disease/chronic kidney failure requiring dialysis as secondary to service-connected diabetes mellitus. However, the Veteran has been assigned a separate rating for amputation of the left leg secondary to his diabetes mellitus, granted special monthly compensation at the (k) rate on account of loss of use of one foot, and awarded automobile and adaptive equipment. While an October 2011 VA eye examination revealed slight nonproliferative diabetic retinopathy, it was not shown to affect the Veteran's vision. In an October 2011 VA diabetes mellitus examination report, the examiner specifically identified complications of diabetes mellitus as diabetic peripheral neuropathy and erectile dysfunction. Additional October 2011 VA peripheral neuropathy and male reproductive system examination reports included detailed findings related to erectile dysfunction and diabetic peripheral neuropathy of upper and lower extremities. As the record is not complete, the Board will not prematurely address the identified complications of the Veteran's service-connected diabetes mellitus in the evidence of record, to specifically include the findings in the October 2011 VA examination reports. The Board is cognizant that the AMC referenced new issues of erectile dysfunction, peripheral neuropathy, and hypertension as diabetic complications identified during the October 2011 VA examination in an August 2012 memorandum associated with the record. However, the RO then simply rated the Veteran's left leg amputation residuals associated with diabetes mellitus in the October 2013 rating decision discussed above and did not evaluate or consider any other identified complications of diabetes mellitus. Thus, the Board invites the RO/AMC to address any identified compensable complications of Veteran's service-connected diabetes mellitus as instructed in 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) once all necessary development has been completed. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU in this circumstance when the issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In an October 2011 VA diabetes mellitus examination report, the examiner indicated that the Veteran's diabetes mellitus (and complications of diabetes mellitus if present) did not impact the Veteran's ability to work. In an October 2011 VA peripheral neuropathy examination report, the examiner indicated that the Veteran's diabetic peripheral neuropathy did impact his ability to work, as he was not able to stand or walk for prolonged periods and had manual dexterity issues. Based on foregoing, the Board finds that the issue of entitlement to TDIU has been raised and must be remanded for initial development. Finally, the claims file also reflects that the Veteran has received medical treatment for his service-connected diabetes mellitus with associated complications from the VA Medical Center (VAMC) in New Orleans, Louisiana; however, as the claims file only includes records from that facility dated up to August 2012, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC must contact the Social Security Administration (SSA) for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with any filed claim by the Veteran for SSA disability benefits. Any attempts to obtain records that are ultimately unsuccessful, must be documented in the claims folder. 2. The RO/AMC should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected diabetes mellitus with any associated complications, to include sending the Veteran an application for TDIU and an appropriate VCAA notification letter. In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history, or obtain additional medical evidence or medical opinion, as is deemed necessary. 3. The RO/AMC should obtain updated treatment records pertaining to the Veteran's service-connected diabetes mellitus with associated complications from the New Orleans VAMC for the time period from August 2012 to the present and associate them with the claims file. 4. After completion of the above and any additional development deemed necessary, readjudicate the issues on appeal, with consideration of all evidence obtained since the issuance of the August 2012 SSOC as well as any identified compensable complications of Veteran's service-connected diabetes mellitus under 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2013). _________________________________________________ J. D. DEANE Acting 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).