Citation Nr: 1337407 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 03-31 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, type II, with diabetic retinopathy and erectile dysfunction, currently rated 20 percent disabling. 2. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, secondary to diabetes mellitus, currently rated 10 percent disabling. 3. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity, secondary to diabetes mellitus, currently rated 10 percent disabling. 4. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity, secondary to diabetes mellitus, currently rated 10 percent disabling. 5. Entitlement to an increased rating for peripheral neuropathy of the left upper extremity, secondary to diabetes mellitus, currently rated 10 percent disabling. 6. Entitlement to an effective date earlier than April 11, 2008, for the grant of service connection for peripheral neuropathy of the right lower extremity. 7. Entitlement to an effective date earlier than April 11, 2008, for the grant of service connection for peripheral neuropathy of the left lower extremity. 8. Entitlement to an effective date earlier than April 11, 2008, for the grant of service connection for peripheral neuropathy of the right upper extremity. 9. Entitlement to an effective date earlier than April 11, 2008, for the grant of service connection for peripheral neuropathy of the left upper extremity. 10. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling. 11. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. With regard to the issue of entitlement to a TDIU, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This issue was previously before the Board. In an August 2010 decision, the Board denied the Veteran's claim for TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2010, the Court issued an order which granted a joint motion of the parties, dated that same month, for remand and to vacate the Board's August 2010 decision. In August 2011, the Board remanded the issue for additional development. The Veteran testified on the TDIU issue before the undersigned at a Board hearing in April 2008. A transcript of this hearing is of record. With regard to the diabetes rating issue, the PTSD rating issue, as well as the rating and effective date issues concerning peripheral neuropathy of the right and left lower extremities, these issues come before the Board on appeal from an October 2010 rating decision. A notice of disagreement was received in October 2011. A statement of the case addressing these matters was issued in August 2012. A substantive appeal addressing these issues was received in September 2012; the Veteran expressed that he did not desire an additional Board hearing concerning these issues. With regard to the four rating and effective date issues concerning peripheral neuropathy of the right and left upper extremities, these issues come before the Board on appeal from a January 2011 RO rating decision. A notice of disagreement received in October 2011 was deemed by the RO to have included these issues. (The Board observes that there is some lack of clarity as to whether the October 2011 correspondence included disagreement with determinations on the upper extremities or the January 2011 RO rating decision, but the Board shall not disturb the RO's determination and the Veteran's current understanding that such an appeal was initiated in October 2011.) A statement of the case addressing these matters was issued in June 2012. A substantive appeal addressing these issues was received in July 2012; the Veteran expressed that he did not desire an additional Board hearing concerning these issues. Each of the increased rating and TDIU issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A September 2008 Board rating decision denied entitlement to an increased rating for the Veteran's diabetes mellitus pathology; the Veteran did not appeal the September 2008 denial. 2. Following the prior final denial, the earliest claim for increased disability compensation associated with diabetes mellitus was received on October 6, 2008. 3. RO rating decisions issued in October 2010 and January 2011, adjudicating the October 2008 claim for increased disability compensation for diabetes mellitus, awarded separate 10 percent disability ratings for peripheral neuropathy of each upper and lower extremity. 4. November 19, 2007, is the earliest date upon which it is factually ascertainable that the Veteran experienced an increase of mild incomplete paralysis featuring sensory involvement from peripheral neuropathy of the right lower extremity during the one-year period prior to October 6, 2008. 5. November 19, 2007, is the earliest date upon which it is factually ascertainable that the Veteran experienced an increase of mild incomplete paralysis featuring sensory involvement from peripheral neuropathy of the left lower extremity during the one-year period prior to October 6, 2008. 6. November 19, 2007, is the earliest date upon which it is factually ascertainable that the Veteran experienced an increase of mild incomplete paralysis featuring sensory involvement from peripheral neuropathy of the right upper extremity during the one-year period prior to October 6, 2008. 7. November 19, 2007, is the earliest date upon which it is factually ascertainable that the Veteran experienced an increase of mild incomplete paralysis featuring sensory involvement from peripheral neuropathy of the left upper extremity during the one-year period prior to October 6, 2008. CONCLUSIONS OF LAW 1. The September 2008 Board decision which denied entitlement to increased disability compensation for the service-connected diabetes mellitus pathology is final. 38 U.S.C.A. § 7104 (West 2002). 2. The criteria for an effective date of November 19, 2007 (but no earlier) for the grant of a separate 10 percent disability rating for diabetic peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 3. The criteria for an effective date of November 19, 2007 (but no earlier) for the grant of a separate 10 percent disability rating for diabetic peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 4. The criteria for an effective date of November 19, 2007 (but no earlier) for the grant of a separate 10 percent disability rating for diabetic peripheral neuropathy of the right upper extremity have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 5. The criteria for an effective date of November 19, 2007 (but no earlier) for the grant of a separate 10 percent disability rating for diabetic peripheral neuropathy of the left upper extremity have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The issues decided by a final Board decision at this time concern effective dates assigned for awards of separate ratings for peripheral neuropathy in connection with the Veteran's claim of entitlement to increased disability compensation for the underlying service-connected diabetes pathology. The RO provided the appellant pre-adjudication notice pertinent to establishing increased disability compensation for diabetes by a letter dated in September 2010. Since the issues of entitlement to earlier initial effective dates arise from grants of separate ratings for peripheral neuropathy in connection with a claim for increased disability compensation for diabetes, the effective date issues in this case are downstream issues from the Veteran's claim of entitlement to increased disability compensation for diabetes that led to the grant of the separate neuropathy ratings. The Board notes that the September 2010 VCAA letter included notice regarding how VA determines effective dates. The Board finds that the timely notice regarding increased disability compensation (including assignment of effective dates) for diabetes mellitus in the September 2010 VCAA letter is adequate and another VCAA notice letter is not required for the effective date issues. The notification in this case complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The September 2010 letter provided notice concerning the assignment of disability ratings and effective dates in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was timely, as the letter preceded the corresponding October 2010 and January 2011 RO rating decisions on appeal. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The claims-file contains service treatment records (STRs) as well as VA post-service treatment records. VA has also afforded the Veteran VA examinations. All known and available records relevant to the issues on appeal decided at this time have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Board notes that appropriate action has been taken to obtain the Veteran's records in the custody of the Social Security Administration (SSA). The claims file includes SSA's October 2011 notice to VA that the Veteran's records are unavailable because they have been destroyed. The Board observes that the Veteran has submitted his own copies of some pertinent records associated with the pertinent SSA proceedings, and the records are documented in the claims file. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. Analysis Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. The assignment of effective dates for increased evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110. The pertinent provisions of 38 C.F.R. § 3.400 clarify that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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 the later. (o)(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400 The Court and the VA General Counsel have interpreted the laws and regulations pertaining to the effective date of an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The RO has awarded the Veteran 10 percent ratings for diabetic neuropathy of each upper extremity under the provisions of Diagnostic Code 8699-8616 as analogous to neuritis of the ulnar nerve. Neuritis of the ulnar nerve is evaluated according to the rating criteria in 8516, paralysis of the ulnar nerve. Id. Under Diagnostic Code 8516, for the major arm, mild incomplete paralysis of the ulnar nerve is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8699-8616. The RO has awarded the Veteran 10 percent ratings for diabetic neuropathy of each lower extremity under the provisions of Diagnostic Code 8520 for impairment of the sciatic nerve. Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA," with an emphasis on the evidence relevant to the matters on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. An August 2001 RO rating decision granted service connection for diabetes mellitus associated with herbicide exposure; a 20 percent initial rating was assigned from an initial effective date of July 9, 2001. In March 2002, the RO issued a rating decision revising the effective date of the grant of service connection for diabetes mellitus to June 28, 2001. In October 2003, the RO issued another rating decision further revising the effective date of the grant of service connection for diabetes mellitus to May 8, 2001. The Veteran did not appeal these decisions with regard to these issues. In January 2005, the RO issued a rating decision denying a claim of entitlement to any rating in excess of 20 percent for diabetes mellitus, type II. In January 2005, the Veteran filed a notice of disagreement initiating an appeal of that denial. In September 2005, a statement of the case was issued addressing issues on appeal including the claim seeking an increased rating for diabetes mellitus, type II; a 20 percent rating was continued. The Veteran submitted a September 2005 VA Form 9 substantive appeal perfecting the appeal of the initial diabetes rating. In November 2005, the RO issued a rating decision assigning a noncompensable disability rating for erectile dysfunction as part of the service-connected diabetic pathology; the rating decision also awarded special monthly compensation based on loss of use of a creative organ in connection with the diabetes; these awards were effective from June 21, 2005. In July 2006, the RO issued a rating decision and a supplemental statement of the case continuing the 20 percent disability rating for diabetes mellitus, type II. A January 2007 supplemental statement of the case again continued the 20 percent rating; this time the rating included contemplation of diabetic retinopathy as part of the service-connected diabetes pathology. The Veteran reiterated his desire for a higher rating in statements including in January 2007, July 2007, and January 2008; the Veteran additionally reiterated his contentions in testimony at his April 2008 Board hearing. Significantly, in September 2008, the Board issued a decision denying the Veteran's claim of entitlement to increased disability compensation for diabetes mellitus with retinopathy. The September 2008 decision on this issue was not appealed, and is therefore final. 38 U.S.C.A. § 7104. The September 2008 final Board decision concerning the issue of assigning disability rating(s) for diabetes mellitus constitutes a final adjudication resolving any claim for increased disability compensation for diabetes that was pending at that time. No claim associated with seeking increased disability compensation for the service-connected diabetes pathology remained pending following the September 2008 Board decision denying the appeal. The Board observes that the September 2008 Board decision included an issue of entitlement to TDIU which was remanded at the time and later denied in an August 2010 Board decision. The Veteran appealed the August 2010 denial of TDIU, alone, to the Court. There has been no appeal of the September 2008 Board decision denying increased disability compensation for diabetes mellitus with retinopathy. On October 6, 2008, the RO received the Veteran's written statement expressing a desire to initiate a new claim "for an increase in evaluation for the following disability: Diabetes ...." In a follow-up statement received at the RO in November 2008, the Veteran acknowledged that "the Board of Veterans Appeal denied the claim on Septem. 2008. Therefore I am requesting again to be re-evaluated for an increased rating due to the severity of my disabilities." The RO issued an October 2010 rating decision continuing the 20 percent rating for the diabetes disease process with retinopathy and erectile dysfunction. Significantly, the October 2010 rating decision additionally granted separate disability ratings for peripheral neuropathy: a 10 percent rating for peripheral neuropathy of the right lower extremity and a 10 percent rating for peripheral neuropathy of the left lower extremity. The October 2010 rating decision assigned an effective date of April 11, 2008 for the peripheral neuropathy ratings; the rating decision's explanation of the effective date assignments cited a VA nerve conduction test from that date showing the neuropathy. The October 2010 rating decision deferred decisions of entitlement to compensation for peripheral neuropathy of the upper extremities. In January 2011, the RO issued a rating decision additionally granting separate disability ratings for peripheral neuropathy of the upper extremities: a 10 percent rating for peripheral neuropathy of the right upper extremity and a 10 percent rating for peripheral neuropathy of the left upper extremity. The peripheral neuropathy ratings for each upper extremity were assigned effective dates of April 11, 2008, on the same cited basis as discussed in the October 2010 rating decision's assignment of ratings for peripheral neuropathy of the lower extremities. The Veteran has appealed the assignment of April 11, 2008 as the effective date for award of separate ratings for diabetic peripheral neuropathy of each upper and lower extremity; he seeks assignment of an earlier effective date for each rating. Initially, the Board notes that the October 2003 assignment of the original effective date was made by the RO with consideration of pertinent caselaw featuring Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III)(now codified at 38 C.F.R. § 3.816). Following the 2002 decision of the United States Court of Appeals for the Ninth Circuit (Ninth Circuit), VA established regulations pertaining to effective dates for awards of compensation/DIC for certain diseases based on herbicide exposure. The Veteran's established entitlement to service connection for diabetes involves exposure to herbicides in Vietnam and the Veteran is a 'Nehmer class member.' (A Nehmer class member includes a Vietnam Veteran who has a "covered herbicide disease.") The unappealed October 2003 RO rating decision made the initial assignment of an effective date for service connection for diabetes, and that decision is final. 38 U.S.C.A. § 7105. The Veteran has not asserted that the application of Nehmer has any further effect upon the assignment of peripheral neuropathy rating effective dates at issue in this appeal. The Board finds the effective dates on appeal arise from ratings granted in the adjudication of a claim seeking increased disability compensation and not related to the assignment of the original effective date for service connection for the diabetes pathology. Accordingly, the Board shall not discuss Nehmer further, and shall proceed to analysis under the applicable laws and regulations governing the effective date assignments in this appeal. In a July 2012 brief, the Veteran's representative pointed to the existence of medical evidence alleged to show peripheral neuropathy prior to April 2008 as the basis for the claimed entitlement to assignment of earlier effective dates. The Veteran's representative contends: evidence in the Veteran's claims file reveals complaints and symptoms relative to his lower extremity peripheral neuropathy since 2002 (please reference the January 3, 2002 "Joints" compensation and pension exam). The Veteran's complaints relative to his upper extremities date back to a[t] least January 2008 (please reference January 30, 2008 VAMC treatment note). In analyzing this matter with an eye to identifying a legal basis for assignment of earlier effective dates, the Board first finds that the award of the peripheral neuropathy ratings in the October 2010 and January 2011 RO rating decisions arose from the Veteran's October 6, 2008 claim seeking increased disability compensation for his service-connected diabetes pathology. The award of these separate neuropathy ratings were a partial grant of the claim for increased disability compensation for diabetes; they resulted from the RO recognizing that the service-connected diabetes pathology manifested in symptoms of the extremities that were not contemplated in the disability rating assigned for diabetes under Diagnostic Code 7913. The Board observes that consideration of whether the award of the separate ratings for peripheral neuropathy may be viewed as arising from a service connection claim rather than a claim for an increased rating does not yield any basis for award of an earlier effective date. Under these circumstances, an award of service connection cannot be effective from earlier than the date of the claim from which the award arises. The awards of the disability ratings for peripheral neuropathy arise from an October 2008 claim and the effective dates are already established as no later than the prior date of April 11, 2008. Furthermore, no identifiable formal claim of entitlement to service connection for peripheral neuropathy had been filed prior to October 2008 (or prior to April 11, 2008), and the mere receipt of VA treatment records documenting peripheral neuropathy may not be considered informal claims of entitlement to service connection. Although the Veteran was treated in VA facilities and was the subject of VA treatment records, any mere receipt of the Veteran's treatment records by VA does not raise an implied claim for service connection. The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006), citing Brannon v. West, 12 Vet. App. 32, at 35 (1998). Furthermore, the Court has held that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, the Court has also stated that a Veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993). VA must have some means of distinguishing between legitimate claims and ordinary medical paperwork. The basic procedural requirements imposed by § 3.155 serve this purpose. Indeed, if his STRs or his VA examinations were interpreted as an informal claim, this "would eviscerate the intent requirement [of § 3.155]." See Ellington, 22 Vet. App. at 146. The Court recognized two exceptions to this general rule: (1) When an underlying claim has been awarded and the medical records demonstrate that the Veteran's disability has increased (38 C.F.R. § 3.157), or (2) when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. Criswell, 20 Vet. App at 504. However, neither exception would apply in this case were the assignment of the separate peripheral neuropathy ratings to be viewed as new grants of service connection; the Veteran had never previously sought to establish service connection for peripheral neuropathy. Rather, and more favorably to the Veteran's claim, the Board views the assignment of the separate ratings for peripheral neuropathy as recognition of increased or additional symptomatology of the service-connected diabetes pathology, in connection with the Veteran's October 2008 claim for an increased rating for diabetes. This view is more favorable to the Veteran's claim because (1) it permits consideration of assignment of an effective date of up to one year prior to the date of the October 2008 claim, and (2) it may allow for consideration of earlier medical records as possibly raising earlier informal claims for increase. The ratings for peripheral neuropathy were awarded with effective dates in April 2008 because the RO, understanding the claims as arising from the October 6, 2008 claim for increased disability compensation for diabetes mellitus, and understanding the awards as representing partial grants of a claim for increased compensation for service-connected disability, determined that an effective date was warranted from the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date" in accordance with 38 C.F.R. § 3.400(o)(2). The RO determined that evidence dated April 11, 2008 made it factually ascertainable that the Veteran had developed compensably severe peripheral neuropathy in each extremity as part of his service-connected diabetic pathology. A basis for assignment of earlier effective dates could be presented if the Veteran were to identify correspondence or information which might be understood as having raised the claim for the increased disability compensation earlier than, and which was still pending at the time of, the October 6, 2008 claim for increased disability compensation. However, the record in this case establishes that no claim prior to October 6, 2008 was still pending at the time of the October 6, 2008 claim. Although the Veteran had clearly raised earlier claims of entitlement to increased disability compensation for diabetes mellitus prior to October 6, 2008, none can be considered to have still been pending at the time of the October 6, 2008 claim because all prior pending claims for the increased compensation for diabetes were resolved by the issuance of a final Board decision addressing the issue on September 18, 2008. The September 2008 Board decision addressing the Veteran's pending claim for increased disability compensation for diabetes mellitus was not appealed. The Board's decision was final, and the claims addressed by the decision may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104. Accordingly, no claim for increased disability compensation for diabetes mellitus remained pending immediately following the September 2008 Board decision addressing the issue. The earliest claim for an increased disability compensation for diabetes mellitus following the September 2008 Board decision was the October 6, 2008 claim; this is the earliest date of claim the Board may consider for the purposes of the effective date analysis at issue. The Board observes that the earlier VA treatment records identified by the Veteran's representative as showing the presence of peripheral neuropathy, even if accepted to have constituted valid informal claims for increased disability ratings, are considered to have been resolved by the subsequent September 2008 Board decision and were no longer pending following that time. (Again, to the extent it may be suggested that the medical records' references to peripheral neuropathy should be construed as informal service connection claims apart from the increased rating claim addressed by the September 2008 Board decision, the Board again notes (as discussed above) that the mere receipt of VA treatment records documenting disability are insufficient to constitute informal claims for service connection.) Having established that the awards of separate ratings for peripheral neuropathy can only be understood to have arisen from the October 6, 2008 claim for increased disability compensation, and that no earlier date may be properly considered the pertinent date of claim, the Board now proceeds to consideration of whether an earlier effective date may be warranted within the one year period prior to that date of claim. If the evidence shows that the pertinent increase in severity of disability was factually ascertainable at any date within a year prior to the date of the claim, the associated disability rating may be awarded from the appropriate date of factual ascertainability. The RO has already assigned effective dates of April 11, 2008 for each peripheral neuropathy rating on the basis of finding that the compensable increase was factually ascertainable as of that date. Thus, the Board will address the question of whether the pertinent compensable increase manifesting in peripheral neuropathy was factually ascertainable prior to April 11, 2008 and during the pertinent period for consideration beginning one year prior to October 6, 2008. The Board acknowledges that the fact of the September 2008 final Board decision addressing the disability compensation for diabetes may present some concern as to whether the subsequent award of ratings for diabetes pathology may properly be effective from prior to the date of the September 2008 final Board decision. However, the Court has stated that an effective date for an increased rating based upon the application of 38 U.S.C.A. § 5110(b)(2) could be prior to a final Board decision if the "ascertainable" increase was shown within one year of the date of claim and the "ascertainable" date preceded the Board decision (and the grant was not based upon the same evidence of record at the time of the prior Board decision). Hazan v. Gober, 10 Vet. App. 511, 519-21 (1997). As explained below, in light of the subsequent award of service connection for peripheral neuropathy of the extremities, the VA treatment records within the year prior to October 6, 2008, including the November 19, 2007 VA treatment record noting pain in the extremities, take on new meaning. For this reason, the Board finds that the earlier effective date grants herein are not based upon the same evidence of record at the time of the September 2008 Board decision. Further, the RO has already established effective dates prior to September 2008 for the ratings for each extremity's peripheral neuropathy, and the peripheral neuropathy ratings did not exist at the time of the September 2008 Board decision. For these reasons, the Board finds that it is most appropriate to consider the assignment of earlier effective dates during the one year period prior to the October 6, 2008 claim in this case. The Veteran is not prejudiced by the Board's determination in this regard, as the Board's decision to consider assignment of earlier effective dates benefits the Veteran's claim seeking assignment of earlier effective dates. April 11, 2008 is the date of a VA neurology report showing that the Veteran's symptom complaints suggestive of neuropathy were objectively evaluated and neuropathy was confirmed by nerve conduction studies. The April 2008 report shows that the medical impression was normal nerve conduction except for left ulnar focal neuropathy at the elbow and mild generalized motor neuropathy in the lower extremities. The Board observes that other medical evidence suggests that the Veteran's neuropathies may involve separate etiologies including traumatic injury, and the Board observes that the April 2008 neurology report does not indicate right upper extremity neuropathy. However, in the context of the broader evidence of record, the RO concluded that peripheral diabetes-related neuropathy of both upper and both lower extremities was shown as of April 11, 2008. As the fact of diabetic neuropathy with mild incomplete paralysis in each extremity has essentially been established by VA adjudication, the Board accordingly accepts for the purposes of this analysis that the Veteran had diabetic neuropathy with mild incomplete paralysis (featuring sensory involvement) in each extremity in April 2008. In this light, the Board considers it significant that the Veteran is shown to have been complaining of the same symptomatology prior to the objective testing conducted to investigate his complaints. March 2008 VA medical records show that diabetic neuropathy was suspected as an element of the Veteran's complaints. A January 2008 VA primary care nursing note shows that the Veteran complained of "increased neuropathy pain in arms, hands and feet." A November 19, 2007 VA primary care nursing note shows that the Veteran sought medical care for "Diabetes, having pain at this time, rating 7/10." The same report shows the assessment included "Chronic pain to extremities." The evidence in this case is not entirely clear. However, accepting that the Veteran has already been adjudged by VA to have had diabetic neuropathy of each lower extremity with mild incomplete paralysis (featuring sensory involvement) shown in April 2008, the Board finds that evidence as early as November 19, 2007 reasonably indicates the presence of the same neuropathy symptoms in each extremity, and these symptoms are reasonably shown by other evidence to have continued from that time through April 2008. Resolving reasonable doubt in the Veteran's favor, the Board finds that it is factually ascertainable that the Veteran had notable symptoms of neuropathy in each extremity on November 19, 2007. The Board finds that the symptoms associated with the mild incomplete paralysis of neuropathy (featuring sensory involvement) in each extremity shown from April 11, 2008 are reasonably shown to have been present from the earlier date of November 19, 2007. As November 19, 2007 is within the one year period prior to the October 6, 2008 date of claim, assignment of November 19, 2007 as the effective date for each separate rating assigned for peripheral neuropathy of each extremity is appropriate. As the evidence does not make the pertinent increase in disability factually ascertainable at any earlier date within the pertinent period, no effective date prior to November 19, 2007 is warranted. Based upon the evidence in this case, the exact onset of the Veteran's compensable manifestations of diabetic peripheral neuropathy in each extremity cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for separate compensable ratings for diabetic neuropathy is November 19, 2007, the date he was noted during VA medical consultation to have chronic pain in his extremities. To be clear, in the time following the final Board decision issued on a claim of entitlement to increased disability compensation for diabetes, the Veteran's earliest new claim was received on October 6, 2008. Therefore, in this instance, consideration of effective dates based upon factually ascertainable increase in severity is limited to the one year period prior to October 6, 2008 and may not be earlier than October 6, 2007. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.157, 3.400. The Board finds that the earliest date of a factually ascertainable manifestation of compensable peripheral neuropathy, during the pertinent period for consideration, is November 19, 2007. The Board finds that an earlier effective date of November 19, 2007 (but no earlier) is warranted for each 10 percent disability rating assigned for the Veteran's peripheral neuropathy of the bilateral upper and bilateral lower extremities. ORDER An effective date of November 19, 2007 (but not earlier), for the grant of a 10 percent disability rating for peripheral neuropathy of the right lower extremity is warranted. To this extent, the appeal is granted. An effective date of November 19, 2007 (but not earlier), for the grant of a 10 percent disability rating for peripheral neuropathy of the left lower extremity is warranted. To this extent, the appeal is granted. An effective date of November 19, 2007 (but not earlier), for the grant of a 10 percent disability rating for peripheral neuropathy of the right upper extremity is warranted. To this extent, the appeal is granted. An effective date of November 19, 2007 (but not earlier), for the grant of a 10 percent disability rating for peripheral neuropathy of the left upper extremity is warranted. To this extent, the appeal is granted. REMAND The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). In this case, VA treatment records from the past 2 years have been newly added to the claims-file very recently in October 2013. Substantial VA treatment records newly added to the record in October 2013 were not of record and not available for review at the time of the RO-level adjudications of the issues on appeal (most recently in a statement of the case and supplemental statements of the case issued in June 2012 and August 2012). The case was certified to the Board in August 2013, so essentially all of the new VA records were created while the case was at the RO / Agency of Original Jurisdiction (AOJ), but were not considered by the AOJ adjudication. Because these VA treatment records were generated by the VA, they must be considered to have been constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Because the Board finds that these VA treatment records document new instances of treatment and contain recent evidence concerning the statuses of the Veteran's disabilities on appeal (including his PTSD, diabetes, and diabetic pathologies), the Board must find that some of the records are not duplicative of prior evidence and are relevant to the increased rating issues and TDIU issue on appeal. Accordingly, before final appellate review at the Board may properly proceed, the increased rating and TDIU issues must be remanded so that the AOJ may consider the new evidence and issue an appropriate supplemental statement of the case. The Board has no discretion and may not proceed with appellate review prior to the AOJ issuing a supplemental statement of the case addressing this evidence because the new evidence includes pertinent VA records constructively obtained by the AOJ prior to the case being sent to the Board. Additionally, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Under the circumstances of this case, the Board finds that another VA examination is appropriate for the PTSD and diabetes rating issues on appeal. Briefly, the Board observes that among the recently added new VA treatment records (in Virtual VA) are suggestions of possibly worsened severity of the disabilities on appeal. With regard to the Veteran's PTSD, the Board observes that a June 2012 report shows that the Veteran reported "feeling like hurting other people." Significantly VA reports in March and April 2013 indicate that the Veteran was ordered by a court to attend anger management classes in connection with an incident in which he was found to have shot at a driver in circumstances which may suggest a loss of control of his anger and irritability resulting in violence. This information suggests a possible increase in severity in PTSD symptomatology and may be reasonably seen to implicate specific criteria pertinent to assignment of a higher disability rating. The Board finds that a new VA examination is appropriate to ascertain the current severity of the Veteran's PTSD. With regard to the Veteran's diabetes pathology, the Board notes that a July 2013 VA psychiatric report notes that the Veteran reported "some recent difficulty controlling diabetes." Another July 2013 VA medical record suggests that the Veteran may have been advised to avoid exercise for a period, apparently for the purpose of adjusting to some new shoe inserts (with attention to some concerns associated with diabetes including lower extremity neuropathy). This followed reports, including an April 2013 VA treatment record, indicating that that Veteran was struggling with "non compliance to the diet and meds" in his diabetes treatment. Also, the Board notes that March and April 2013 VA treatment records indicate that the Veteran experienced substantial neurological symptoms in at least one upper extremity that was apparently attributed to cervical radiculitis; although the cervical radiculitis is not associated with diabetic neuropathy, the presence of new neurological symptoms in at least one extremity reasonably raises some question as to whether any underlying diabetic neuropathy in the extremities may present any increased severity. Another April 2013 VA treatment record documents that the Veteran perceived that an adjustment in his insulin had not been working in controlling his blood sugars; the Veteran rejected a prescription of "Detemir insulin" as being ineffective for him and requested that a prior "70/30" insulin be reordered for him. As the issues concerning rating the Veteran's diabetes pathology must be remanded for other reasons, the Board finds that it is most reasonable to afford the Veteran new VA examinations to provide clear updated assessment of the severity of the various symptoms of the Veteran's multifaceted diabetes pathology on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements. The RO should ensure that the set of the Veteran's VA treatment records in the claims-file is updated prior to readjudication of the claim. 2. The RO should arrange for a psychiatric evaluation of the Veteran to assess the current severity of his PTSD. The Veteran's complete record (including his complete updated set of VA treatment records) must be reviewed by the examiner in conjunction with the examination. The examination report should include discussion of any increase in severity of prior noted PTSD symptoms and identify any new (since the November 2011 VA examination) emergent PTSD symptoms and their severity and frequency. The report should discuss documented developments since November 2011, such as: (a) the March and April 2013 VA medical records indicating that the Veteran was ordered by a court to attend anger management classes in connection with an incident in which he was found to have shot at a driver in circumstances which may suggest a loss of control of his anger and irritability resulting in violence, and (b) the June 2012 VA report showing the Veteran "feeling like hurting other people." The examination report should include comment regarding the impact the PTSD has on occupational and everyday activity function. The examiner should explain the rationale for all opinions, citing to supporting clinical data. 3. The RO should also arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his diabetes mellitus. The Veteran's complete record (including his complete updated set of VA treatment records) must be reviewed by the examiner in conjunction with the examination. All findings should be reported in detail, and any indicated tests or studies should be completed. The findings must specifically include whether or not the diabetes requires insulin, restricted diet and regulation of activities. The examiner should also identify all current diagnoses found to be complications of the diabetes. The examiner should explain the rationale for all opinions, citing to supporting clinical data. 4. The RO should arrange for a neurological examination of the Veteran to determine the current severity of his peripheral neuropathy of the bilateral upper and bilateral lower extremities. The Veteran's complete record (including his complete updated set of VA treatment records) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. The examiner should elicit the Veteran's subjective complaints, report all clinical findings in detail, and reconcile the subjective complaints with the objective findings, commenting on the resulting functional impairment in each extremity that is associated with the service-connected peripheral neuropathy. The examiner should explain the rationale for all opinions, citing to supporting clinical data. 5. The RO should then review the expanded record (including all evidence added since the prior RO adjudication of each issue, particularly including the VA medical records pertaining to the past two years newly added to Virtual VA in October 2013) and readjudicate the claims on appeal. If any claim on appeal remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M. C. Graham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs