Citation Nr: 1337489 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-25 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating higher than 20 percent for diabetes mellitus with cataracts and erectile dysfunction. 2. Entitlement to a rating higher than 10 percent for right leg peripheral neuropathy. 3. Entitlement to a rating higher than 10 percent for left leg peripheral neuropathy. 4. Entitlement to service connection for left trigger finger disability. 5. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral knee disability. 6. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In a March 2011 rating decision, the Veteran was granted service connection for coronary artery disease, status post coronary artery bypass graft and an associated scar, which is a complete grant of the benefit sought regarding that matter. The Veteran was scheduled to present testimony before a Veterans Law Judge (VLJ) on March 25, 2013. However, he failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to this hearing or any additional requests for an appeals hearing, the Board deems the Veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2013). The Veteran was represented by an attorney but that representation was terminated and the Veteran did not assign representation to anyone else. The issue of service connection for bilateral knee disability is addressed in the Remand section of this decision. It is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. . FINDINGS OF FACT 1. Diabetes mellitus requires medication, insulin, and a restrictive diet, but not regulation of activities. He has cataracts, but no resulting decreased visual acuity and erectile dysfunction, but no resulting penile deformity. 2. Peripheral neuropathy of the right lower extremity is characterized by mild intermittent pain, mild paresthesias/dysesthesias, mild numbness, and decreased light touch sensation, which is equivalent to no more than mild incomplete paralysis of the sciatic nerve. 3. Peripheral neuropathy of the left lower extremity is characterized by mild intermittent pain, mild paresthesias/dysesthesias, mild numbness, and decreased light touch sensation, which is equivalent to no more than mild incomplete paralysis of the sciatic nerve. 4. Left trigger finger disability did not have its clinical onset in service and is not otherwise related to active duty. 5. In an unappealed March 1997 rating decision, VA denied service connection for back and bilateral knee disability. 5. The Veteran's claim of service connection for a back disability was again denied in July 2002 and October 2006 rating decisions for failure to submit new and material evidence. These rating decisions were not appealed. 6. The evidence received since the March 1997 rating decision is new and raises a reasonable possibility of substantiating the claim of service connection for a bilateral knee disability. 7. The evidence received since the October 2006 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a back disability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for diabetes mellitus, with cataracts and erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.119 Diagnostic Code 7913 (2013). 2. The criteria for a rating higher than 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for a rating higher than 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2013). 4. Left trigger finger disability was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2013). 5. The March 1997 rating decision denying service connection for bilateral knee disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2013). 6. The evidence received since the March 1997 rating decision is new and material, and the claim for service connection for a bilateral knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2013). 7. The October 2006 rating decision denying service connection for a back disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2013). 8. The evidence received since the October 2006 rating decision is not new and material, and the claim of service connection for a back disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, like the Veteran's back and knee claims, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. In a claim for increase, like the Veteran's diabetes mellitus and peripheral neuropathy claims, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent letters in November 2007 and April 2008 that, when combined, provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for left trigger finger. Moreover, the post-service evidence does not indicate any current complaints or treatment referable to left trigger finger until several decades following separation. Furthermore, the records contains no competent evidence suggesting a causal relationship between the current disability and active service. The Veteran has not specifically claimed that pertinent disability had its onset in service or is otherwise related to service or a service-connected disability. For these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2010 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Diabetes Mellitus with Cataracts and Erectile Dysfunction The Veteran was originally granted service connection for diabetes mellitus in an August 2001 rating decision. At that time, this disability was rated as 20 percent disabling, effective July 9, 2001. This effective date was changed to February 16, 2001, by a December 2001 rating decision. The Veteran filed a claim for an increased rating in October 2007. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Different levels of compensation may be assigned from the time the increased rating claim is filed to the time a final decision is made where the Veteran has experienced multiple distinct degrees of disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must evaluate this claim in its entirety to determine whether a staged evaluation is appropriate. See id. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Diagnostic Code 7913 addresses diabetes mellitus. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. Diabetes mellitus requiring 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 rated, is rated 60 percent disabling. Diabetes mellitus requiring 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 rated, is rated 100 percent disabling. In April 2008, the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran's diabetes was treated with once-daily insulin injections and oral medication. The Veteran was instructed to follow a restricted diet, but his activities were not restricted. He was found to have diabetic visual symptoms in the form of bilateral cataracts. Nevertheless, his visual acuity was found to be normal and his visual fields were grossly normal. He had no hospitalizations and no episodes of ketoacidosis or hypoglycemia. The Veteran underwent an eye examination in June 2008 which found mild nonproliferative diabetic retinopathy and bilateral cataracts. No visual impairment was attributed to either condition. In September 2011, the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran's diabetes was treated with prescription oral hypoglycemic agents and more than one injection of insulin per day. No regulation of activities was required. He had no episodes of ketoacidosis or hypoglycemia that required hospitalization within the last 12 months. He did not have progressive unintentional weight loss or loss of strength attributed to his diabetes. The Veteran did have diabetic neuropathy, erectile, dysfunction, and cardiac disability that were likely due to his diabetes. The penis was not examined per the Veteran's request, but he reported normal penile anatomy with no deformity. The Veteran's diabetes affected his employability in that he complained of lack of stamina. This examination found no eye disability. Based on the evidence described above, the Veteran's symptoms do not meet the requirements for a rating in excess of the currently assigned 20 percent. Throughout the appeals period, the Veteran's diabetes has been treated with medication and daily injections of insulin. Additionally, the Veteran was prescribed a special diet to control his diabetes. The Veteran's diabetes clearly requires both medication and insulin. In order to warrant the next higher evaluation of 40 percent, the evidence must show that his diabetes also requires regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. These medical records do not show that any regulation of his activities was prescribed. Likewise, the evidence of record during this time period does not show episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice monthly visits to a diabetic care provider. As such, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's diabetes. See 38 C.F.R. § 4.7. The Board has also considered whether the Veteran has compensable complications of diabetes that can be rated separately as instructed by Note (1) to Diagnostic Code 7913. 38 C.F.R. § 4.119. The Veteran's associated eye problems do not result in sufficient loss of vision to warrant a separate evaluation. His visual fields and visual acuity are within normal limits. He has erectile dysfunction, but no resulting penile deformity. See 38 C.F.R. § 4.119, DC 7913, Note (1)(noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913). He has been awarded separate ratings for peripheral neuropathy of each of his lower extremities and the propriety of those evaluations is discussed below. Additionally, the Veteran has been awarded special monthly compensation for loss of a creative organ (erectile dysfunction), effective September 15, 2001. Peripheral Neuropathy of the Lower Extremities The Veteran was originally granted service connection for peripheral neuropathy of the lower extremities in a July 2002 rating decision. At that time, bother lower extremities were evaluated as 10 percent disabling, effective February 16, 2001. Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity, 20 percent rating for moderate incomplete paralysis of the sciatic nerve in either lower extremity, a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve in either lower extremity, and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked musculature atrophy in either lower extremity. 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In April 2008, the Veteran underwent a VA examination in conjunction with this claim. At that time, his bilateral lower extremity peripheral neuropathy was characterized by decreased sensation. In September 2011, the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran's peripheral neuropathy was characterized by mild intermittent pain (usually dull), mild paresthesias/dysesthesias, and mild numbness of the lower extremities. He had decreased light touch/monofilament of the ankles, lower legs, feet, and toes. The Veteran had loss of hair associated with this diabetic peripheral neuropathy. He had normal muscle strength, deep tendon reflexes, position sense, vibration sense, and cold sensation. He had no muscle atrophy. This examiner found no paralysis of either lower extremity. These disabilities impacted his ability to work in that he complained of difficulty walking when experiencing numbness and tingling in his feet. Based on the above, the Veteran's symptoms most nearly approximate the criteria for the existing 10 percent evaluations. Throughout this appeals period, these disabilities were characterized by mild intermittent pain, mild paresthesias/dysesthesias, mild numbness, and decreased light touch sensation. There was no showing of muscle atrophy or loss of muscle strength and he had sensory impairment only with regard to light touch sensation. These symptoms more nearly approximate the criteria of mild incomplete paralysis of the sciatic nerve than moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520. Therefore, the preponderance of the evidence is against the assignment of initial ratings in excess of 10 percent each for peripheral neuropathy of the right and left lower extremities. 38 C.F.R. § 4.7. The Board has also considered whether a higher evaluation is available under another diagnostic code, but finds that the Veteran's symptoms are better addressed under the criteria for the sciatic nerve and observes that mild incomplete paralysis of a peripheral nerve does not warrant an evaluation above 10 percent in any diagnostic code. See 38 C.F.R. § 4.124a, DC 8521-8530. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. Additionally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that TDIU is considered an element of initial ratings when raised by the record. The record shows that the Veteran is already in receipt of a total disability rating based on individual unemployability (TDIU), effective September 15, 2011. See March 2012 rating decision. This was granted based a finding that the Veteran was unemployable due to his psychiatric disability. See February 2012 VA PTSD examination. While the Veteran's service connected physical disabilities have been shown to affect his employability, there is no suggestion that these disabilities alone precluded gainful employment at any time prior to September 15, 2011. Thus, the issue of entitlement to TDIU based on the Veteran's service connected diabetes mellitus and associated peripheral neuropathy of the lower extremities has not been raised. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Service Connection - Left Trigger Finger Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record shows treatment for left trigger finger. See e.g., November 2006 VA outpatient treatment records. However, the Veteran's service treatment records are silent with regard to any hand or finger disability. No musculoskeletal abnormality was noted at the time of his September 1970 separation examination. Moreover, the Veteran has not provided lay evidence of an in-service injury or onset of this disability. He has not specifically claimed that the disability is secondary to a service-connected disability. As there is no evidence establishing that an event, injury, or disease occurred in service, service connection is not warranted. In conclusion, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against service connection for left trigger finger. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). New and Material Evidence The Veteran was previously denied service connection for back and knee disability in a March 1997 rating decision. The Veteran did not appeal that decision and no additional material evidence was received within one year of its issuance. That decision became final. See 38 C.F.R. § 20.1103. The Veteran's attempts to reopen the back claim were denied in July 2002 and October 2006 rating decisions for failure to submit new and material evidence. The Veteran filed the current claim to reopen in December 2007. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. All evidence submitted by or on behalf of a claimant since the most recent final denial must be reviewed to determine whether the claim should be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-3 (1992). "New" evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156. "Material" evidence is newly submitted evidence that relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. Id. The evidence raises a reasonable possibility of substantiating the claim if it relates to an unestablished element of the claim and the claim could be substantiated were a VA examination provided. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). It contemplates the likely entitlement to an examination if the claim was reopened. Shade, at 121. Bilateral Knee Disability The March 1997 rating decision denied service connection for a bilateral knee disability because there was no complaint of knee pain during service and no showing of chronic knee disability following active duty that could be related to service. The evidence received since that rating decision includes treatment records reflecting diagnoses of bilateral knee arthritis. The additional post-service treatment records are new in that they were not previously submitted to agency decision makers. These records address treatment for current bilateral knee disability. The lack of current disability was a factor in the previous denial of service connection. The additional evidence presents a reasonable possibility of substantiating the claim. Thus, this new evidence is material. See 38 C.F.R. § 3.156 . Accordingly, the criteria for reopening the claim of service connection for a bilateral knee disability have been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Back Disability The Veteran's back claim was decided on the merits in the March 1997 rating decision. The March 1997 rating decision denied service connection for back disability because the Veteran's in-service back complaints were found to be acute myositis that resolved without residual and his post-service complaints of back pain were unrelated. The July 2002 rating decision found that the Veteran had submitted new evidence, but it was not material in that it did not show that a chronic lumbar spine disability was incurred in service. Likewise the October 2006 rating decision found that the Veteran had submitted new evidence, but it was not material in that it again failed to show that the Veteran's degenerative joint disease of the spine began in or was related to service, or began within the one year presumptive period following service. Again, the additional post-service treatment records are new in that they were not previously submitted to agency decision makers; however, these records address treatment for current back problems and do not show a chronic in-service back disability or dispute the prior decisions findings that the Veteran's in-service back complaints were an acute condition that resolved prior to his separation from service. The existing records already showed chronic low back pain and a diagnosis of degenerative joint disease. The new evidence does not related to the unestablished fact of an in-service onset of a chronic back disability. The additional evidence, therefore, does not present a reasonable possibility of substantiating the claim. Thus, this new evidence is not material. See 38 C.F.R. § 3.156 . Accordingly, the Board concludes that the criteria for reopening the Veteran's claim of service connection for a back disability have not been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER A rating higher than 20 percent for diabetes mellitus with cataracts and erectile dysfunction is denied. A rating higher than 10 percent for right leg peripheral neuropathy is denied. A rating higher than 10 percent for left leg peripheral neuropathy is denied. Service connection for left trigger finger disability is denied. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral knee disability, and to this extent the appeal is allowed. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for back disability. REMAND As new and material evidence has been received sufficient to reopen the previously denied claim for service connection for bilateral knee disability, the Board must now consider the de novo issue of entitlement to service connection for bilateral knee disability. On remand, the veteran should be accorded an opportunity to undergo a current VA examination to determine, the etiology of his bilateral knee disability. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); and McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the VCAA, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for a VA orthopedic examination to determine the nature, extent, and etiology of any bilateral knee disability that he may have. The claims folder must be made available to the examiner in conjunction with the examination. All indicated studies testing, including X rays, should be conducted. All pertinent pathology should be noted in the examination report. For any knee disability diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active service or a service-connected disability. In answering this question, the examiner should address the service and post service medical records, and the veteran's complaints. Complete rationale should be given for all opinions reached. 4. Thereafter, the agency of original jurisdiction should re-adjudicate the claim for service connection for bilateral knee disability. If the decision remains in any way adverse to the veteran, he should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issues on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs