Citation Nr: 1338570 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 05-28 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967 including service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and a 20 percent rating for diabetes mellitus and denied a total rating based on individual unemployability. In December 2005, the RO granted service connection and the following ratings for peripheral neuropathy secondary to diabetes mellitus: upper extremities separately rated as 30 and 20 percent disabling effective in November 2003; and lower extremities separately rated as 10 percent each effective in July 2004. The Veteran's combined rating was 70 percent as of July 2004. In September 2009, the RO granted increased ratings for peripheral neuropathy of the lower extremities of 20 percent each effective in May 2007. In March 2010, the Board denied an initial or staged rating in excess of 20 percent for diabetes mellitus. The Veteran appealed the decision to the U.S. Court of Appeals for Veteran's Claims (Court). In January 2011, the Court vacated the Board's decision and remanded the appeal for compliance with the instructions in a Joint Motion for Remand (JMR). In May 2011, the Board remanded the appeal to comply with the JMR instructions, to obtain a current medical examination, and for the RO to consider new evidence submitted by the Veteran. In the introduction, the Board referred the issue of a total rating based on individual unemployability to the RO for initial consideration. The Veteran appealed the preliminary remand order to the Court. In October 2011, the Court vacated the portion of the introduction in the remand regarding the referral of the total rating issue and remanded the appeal for compliance with a second JMR. Most recently, in February 2012, the Board remanded the appeal for compliance with the second JMR. The Board, in its prior remand, characterized the Veteran's claim as that of an initial rating for diabetes mellitus, including consideration of the TDIU, as the TDIU was part and parcel of the diabetes rating. In the decision, below, the Veteran decides the diabetes rating, but is unable to decide the TDIU aspect of the claim without further action. The Board, therefore, has split the issue, as shown in the case caption above. As to the claim for an initial rating in excess of 20 percent for diabetes mellitus, the prior Board remands have been substantially complied with. The requisite VA examination was conducted and a Supplemental Statement of the Case (SSOC) was issued in May 2013. There has been substantial compliance with the actions requested in the Board Remand and the case has returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). As the Board previously indicated in its March 2010 decision and May 2011 remand, in February 2010, by way of the Veteran's designated representative at the time, the issue of service connection for a visual defect secondary to diabetes mellitus was raised. The Board referred this claim to the RO in the first instance, but the RO still has not taken action upon it. Consequently, the Board AGAIN REFERS this matter for initial adjudication and consideration. The Board recognizes that VA concedes the Veteran's in-service herbicide exposure by virtue of his service in Vietnam during the Vietnam Era. A September 2011 private treatment record shows that the Veteran may be diagnosed with coronary artery disease (CAD). Because CAD is a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309, the record raises the claim of entitlement to service connection for CAD, including on the basis of in-service herbicide exposure. Because this claim has not been considered by the RO in the first instance, it is REFERRED for initial adjudication and consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to a total disability rating based upon individual unemployability, including on an extra-schedule basis, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT The Veteran's diabetes mellitus requires more than one daily injection of insulin and a restricted diet, as well as causes hypoglycemic episodes and erectile dysfunction; however, the Veteran's physicians have not directed him to avoid strenuous recreational and occupational activities, he has not been hospitalized for his diabetes or for his hypoglycemic episodes, and his erectile dysfunction is not manifested by penile deformity. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for type 2 diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119 Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated; additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in substantiating his claim under 38 C.F.R. § 3.159(c), (d) (2013). Here, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim at this time. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes private treatment reports and opinions, VA outpatient treatment reports, VA examinations in November 2003, October 2004, March 2007, May 2008, and November 2012, as well as statements from the Veteran and his representative. The adequacy of each of the VA examination reports is discussed in the decision, below. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, and made reasonable efforts to obtain, all evidence that might be relevant to the issue herein decided, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2013). A remand for further development of this claim would serve no useful purpose. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. §§ 3.102, 4.3. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the RO granted service connection for diabetes mellitus associated with herbicide exposure by way of the May 2004 rating decision, and assigned a 20 percent rating effective September 29, 2002. This rating was assigned effective one year prior to the date of the Veteran's claim in accordance with the rules related to liberalizing regulations. The Veteran perfected an appeal as to the initial rating assigned. The Veteran's diabetes has been rated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. After a careful review of the Veteran's claims file, the Board finds that the preponderance of the evidence is against an initial rating in excess of 20 percent for diabetes mellitus. A 20 percent rating is warranted for diabetes mellitus that requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. For an increase to 40 percent, the evidence must show the required use of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted in cases 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 evaluated. A 100 percent rating 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. 38 C.F.R. § 4.119, DC 7913. "Regulation of activities" has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities" as used by VA in 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Note (1), following the rating criteria, indicates that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. As noted in the Introduction section, above, the Veteran presently receives separate disability ratings for peripheral neuropathy of both the right and left upper extremities and the right and left lower extremities. He has not indicated disagreement with the ratings assigned for those separate manifestations of his diabetes, so the Board is limiting its analysis to the underlying diabetes disability. VA has indeed recognized that the Veteran's erectile dysfunction is related to his diabetes, but has found that it is noncompensable, and therefore considered it part of the diabetic process under DC 7913, Note (1). On VA examination in November 2003, the Veteran was reported to manage his diabetes with several medications, to include insulin Humalog 75/25, 26 units in the morning and 22 units in the evening. The insulin was reported to have been prescribed in 2003. Private records in the claims file from Dr. M.M.C. confirm that the Veteran was prescribed insulin in January 2003. At the VA examination, the Veteran reported a history of one episode of hypoglycemia, but no hospitalizations, and no history of hyperglycemia. The Veteran was noted to have a poor to average appetite, with a loss of approximately 40 pounds in a three month period of time in 2003. The examiner assessed his diabetes as under good control. There was no indication in this report that the Veteran's recreational activity was restricted, but with regard to the impact on employment, the examiner did note that the Veteran cannot do strenuous activities, but could do sedentary work. The Board recognizes the Veteran's representative's May 2013 statement suggesting that a 40 percent rating for diabetes mellitus is warranted based upon this report, with a suggestion that it is indicative of the "regulation of activities" required under DC 7913 for a 40 percent rating. The Board, however, does not find that the indication that the Veteran's employability is limited to less strenuous work than the Veteran could previously accomplish and limited to a more sedentary type of job is indicative of the physician prescribed avoidance of recreational and occupational activities that is required for a 40 percent rating and for a 60 percent rating. In fact, the VA examiner specifically indicated that recreational activities are not limited. Furthermore, the Board recognizes that the Veteran was treated with more than one daily injection of insulin at this time, which is part of the rating criteria for a 100 percent rating under DC 7913. Meeting one of the criteria, however, does not mean his disability picture nearly approximates such a rating. There is after all, no regulation of activities, and no hospitalization, such that a 100 percent rating is also not warranted at this time. The Veteran's August 2004 notice of disagreement includes his statements related to the severity of his diabetes. He does not suggest that any physician has restricted his activity. In fact, he reports having to take his glucose machine and medication, everywhere he goes, thus implying some level of activity, albeit with the inconveniences of diabetes. The Veteran also reported that in the prior year he "fell unconscious" two times, once requiring a call to paramedics, but not an admission to the hospital. This implies episodes of hypoglycemia, but without the requirement of hospitalization. On VA examination in October 2004, the Veteran was reported to see his diabetic care physician, Dr. M.M.C, every three to six months. He reported three recent episodes of hypoglycemia, but gave no indication of hospitalization. Continued use of insulin was confirmed. The VA examiner noted diabetes mellitus under fair control. There was no discussion of the Veteran's activity level, or any suggestion of limitations to his activity level, in this report. In December 2004, a private neurologist, Dr. N.K., described the Veteran as physically disabled and incapable of any physical activities that may require lifting or repetitive hand and wrist movements. In an August 2005 statement, the Veteran argued that this is an indication of "regulation of activities." Initially, the Board notes that this is a report from the Veteran's private neurologist, seemingly referring to the separately rated peripheral neuropathy, the rating for which is not under review at this time. Thus, any limitation of activity due to hand and wrist movement is not a part of the underlying diabetic process being analyzed in this decision. Further, limitations caused with recurrent lifting or repetitive hand and wrist movements is not doctor-prescribed avoidance of recreational or occupational activity and therefore, even if it did pertain to the underlying diabetes process, it would not meet the criteria for a rating in excess of 20 percent, as it does not amount to "regulation of activities" as defined by VA regulation. Therefore, throughout 2004, the evidence does not suggest that the criteria for a higher rating for diabetes are met. In February 2005, Dr. M.M.C. submitted a summary of the Veteran's current endocrinology condition. He was noted as having diabetes mellitus, complicated by several factors including suboptimal control and episodic hypoglycemia. He continued treatment with insulin. The physician did not indicate any requisite limitation of activity due to the diabetes, and did not indicate any hospitalizations due to the hypoglycemia. Thus, the Veteran's diabetes continued to be adequately compensated by the 20 percent rating assigned. In February 2007, Dr. N.K., the Veteran's private neurologist, submitted a document entitled "Physician's Questionnaire" related to the Veteran's diabetes. Dr. N.K. indicated that the Veteran has severe diabetic neuropathy and carpel tunnel syndrome, but indicated that the Veteran's diabetes does not require insulin or restricted activity and is managed by diet only. However, in March 2007, the same physician submitted an identical questionnaire indicating that the Veteran's diabetes requires more than one daily injection of insulin, restricted diet, and regulation of 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. These two questionnaires, while close in time, are entirely inconsistent with one another. Further, neither questionnaire is consistent with the clinical evidence of record, which shows insulin dependence and episodic hypoglycemia, but no regulation of activities and no hospitalization for the hypoglycemia. Moreover, the other records submitted by Dr. N.K. pertain primarily to the Veteran's neurological manifestations, rather his underlying endocrinologic condition. For these reasons, neither the February 2007 questionnaire, nor the March 2007 questionnaire are competent medical evidence of the severity of the Veteran's diabetes mellitus at that time. The Veteran again underwent VA examination in March 2007. The VA examination report confirms the Veteran's ongoing use of insulin to control his diabetes. This report also indicates that the Veteran tries to maintain an American Diabetic Association diet. The Veteran confirmed at this time that he was never hospitalized related to his diabetes. He reported his last episode of hypoglycemia as occurring in 2005. There is no showing of the regulation of activities or hospitalizations required for a 40, 60 or 100 percent rating under DC 7919. In this examination, the Veteran also reported recent prescription of Viagra for his erectile dysfunction. There was no indication of any symptom of erectile dysfunction other than a loss of erectile power, requiring the use of Viagra. For a separate compensable rating for erectile dysfunction, the evidence would require a showing of penis deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2013). Diagnostic code 7522 uses the conjunctive "with." That is, both deformity and loss of erectile power must be present to meet the criteria for a 20 percent rating under this diagnostic code. Either symptom, by itself, does not approximate the disability picture that would warrant a compensable rating. Here, the Veteran does not suggest and the evidence does not show that the criteria are met for a separate compensable rating for the Veteran's erectile dysfunction. Again, noncompensable complications of diabetes are considered a part of the diabetic process under DC 7913, Note (1). Thus, a separate rating for erectile dysfunction is not warranted. A March 2008 statement from a private endocrinologist, Dr. M.M.C indicates that the Veteran's diabetes was considered uncontrolled. Continued use of insulin was required, and the Veteran was reported to have hypoglycemic episodes approximately every three weeks. There was no indication, however, that these hypoglycemic episodes required hospitalization at any time. The Veteran was also not described as restricted in activity level by the doctor. This is significant in that this appears to be the Veteran's treating physician for his diabetes condition. It seems as though if a physician were to determine that the Veteran's diabetes warranted a prescription of avoidance of strenuous recreational or occupational activities, it certainly would be noted in the summary of the primary diabetes physician. There is no indication of such required regulation of activities from this statement, thus no basis for an increased rating at this time. Insulin usage continued as of the May 2008 VA examination report. The symptoms at this time were also consistent with those found in March 2007. The Veteran confirmed that he has had no history of diabetic ketoacidosis, but that he does have episodes of hypoglycemia, although they do not bring him to the ER or hospital. The Veteran's weight was noted as remaining steady. In July 2008, the Veteran underwent VA examination related to his peripheral neuropathy. This examination report again confirmed that the Veteran was on insulin and oral hypoglycemic agents, but made no further mention of characteristics of the underlying diabetes, as the examination was primarily for peripheral neuropathy. Treatment records from the Veteran's private neurologist, N.K., also within the claims file, show that the Veteran was seen for care approximately every three months for the symptoms related to the neuropathy in his upper and lower extremities. November 2008 and February 2009 notes show that he was to continue with his diabetic care, to include weight loss. January 2011, February 2012 and August 2012 notes confirm that the Veteran had no recent hospitalizations or emergency room visits. October 2011, February 2012 and August 2012 notes show continuing prescription usage of insulin twice per day. No indication of restricted activity is suggested in the 2008 - 2012 clinical notes from Dr. N.K. Thus, these records, spanning from 2008 to 2012, provide no suggestion that a rating in excess of 20 percent is warranted, as there is no indication of regulation of activity or hospitalization. More recently, in November 2012, the Veteran underwent another VA examination, at which time he was confirmed to manage his diabetes with restricted diet, oral hypoglycemic agents, and insulin (more than one injection per day). The VA examiner specifically stated that the Veteran does not require regulation of activities as part of the medical management of his diabetes. The Veteran reported that he could walk less than one block and mow his lawn with a riding lawn mower. The VA examination report confirms the VA examiner's understanding that regulation of activities can be defined as avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes. While the Veteran's physical activity may be limited, there is no suggestion that a doctor has prescribed avoidance of activity overall. The November 2012 VA examiner also confirmed that the Veteran sees his diabetic care manager less than two times per month, that he has not been hospitalized for hypoglycemia or ketoacidosis episodes, and that he has not had progressive loss of weight or strength due to diabetes. Without a showing of regulation of activities or hospitalization for episodes of ketoacidosis or hypoglycemic episodes, there is no basis upon which an increase rating is warranted. In a clinical treatment note from Dr. N.K. dated March 11, 2013, and received by VA in April 2013, there is an indication that due to the Veteran's sensory dysfunction associated with this neuropathy, the Veteran is to avoid sensory activities. As with the February 2007 statement by N.K., this statement pertains to the Veteran's sensory dysfunction, which his associated with the peripheral neuropathy, not considered in this appeal. This statement is not indicative of a doctor prescribing that the Veteran is required to avoid strenuous occupational or recreational activity due to his underlying diabetes process, the rating for which is under appeal. Thus, this statement does not rise to the level of a "regulation of activity" required for an increase under DC 7913. In sum, the Board finds that the preponderance of the evidence is against an initial rating in excess of the 20 percent rating presently assigned for diabetes mellitus throughout this appeal period. As explained in detail above, while the use of insulin and a restricted diet is shown, there has been no showing that the Veteran's diabetes mellitus is manifested by a regulation of his activities by a physician. Moreover, while he is shown to have episodes of hypoglycemia, he has never been hospitalized for such. For these reasons, there is no basis upon which to assign either a 40 or 60 percent rating for his diabetes. While he is shown to require more than one daily injection of insulin, because he does not have a regulation of activities or hospitalization, there is no basis upon which to award a 100 percent rating. Finally, because neither the evidence shows, nor the Veteran suggests that his erectile dysfunction is manifested by both loss of erectile power and penis deformity, there is no basis for finding that a separate compensable rating is warranted for that aspect of his diabetic process. Therefore, the Veteran's claim must be denied. Finally, the Veteran's diabetes mellitus does not warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008); aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the criteria found in the rating schedule to determine whether the disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that no exceptional or unusual factors are in evidence, such as marked interference with employment or frequent periods of hospitalization that would warrant an extraschedular evaluation for the Veteran's diabetes mellitus. Here, the rating criteria contemplate his disability and provide avenues for increase based upon varying levels of severity, and are thus adequate to evaluate this claim. Referral for extra-schedular consideration is not warranted. ORDER An initial evaluation in excess of 20 percent for diabetes mellitus is denied. REMAND The Veteran's initial rating claim also includes the matter of whether a TDIU is warranted. Since the initial period under appeal, the Veteran is in receipt of service-connected disability compensation as follows: peripheral neuropathy of the right upper extremity, rated 30 percent disabling from November 5, 2003; type 2 diabetes mellitus with erectile dysfunction, rated 20 percent disabling from September 29, 2002; peripheral neuropathy of the left upper extremity rated 20 percent disabling from November 5, 2003; peripheral neuropathy of the lower left extremity, rated 10 percent from July 5, 2004, and 20 percent from May 4, 2007; and peripheral neuropathy of the right lower extremity, rated 10 percent from July 5, 2004, and 20 percent from May 4, 2007. The combined rating for all of the Veteran's pathology associated with his diabetes mellitus, including neuropathy, arising from a common etiology, is 20 percent from September 29, 2002; 60 percent from November 5, 2003; 70 percent from July 5, 2004; and 80 percent from May 4, 2007. Based on these service-connected disabilities, the Veteran does not meet the initial schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). He does not have either one disability rated 60 percent, or one disability rated 40 percent with sufficient additional disability to attain the 70 percent level. That notwithstanding, the Veteran may still warrant entitlement to a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). Upon reviewing the available medical evidence, the Board finds that there are sufficient grounds to suggest that an award of a TDIU on an extraschedular basis may be appropriate. The Board reaches this conclusion in light of the competent VA and private vocational determinations of record, as well as with application of VA's doctrine that all reasonable doubt on a material issue must be resolved in the claimant's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Private clinical notes from Dr. M.M.C., the Veteran's private endocrinologist, show that insulin was recommended in December 2002, but that the Veteran refused it secondary to being a driver, because he would lose his job. At a certain point, however, his health required it. A January 9, 2003, note indicates that the Veteran must go to insulin, despite his desire not to. A November 2003 VA examination report for diabetes notes that the Veteran was employed as a tractor-trailer driver until January 4, 2003. A December 2004 private neurologist described the Veteran as physically disabled and incapable of any physical activities that may recur lifting or repetitive hand and wrist movements. In an August 2005 statement, the Veteran reported that he lost his job and can no longer obtain a truck drivers license due to insulin dependence. In March 2011, E.J.C., a vocational consultant, reviewed pertinent evidence from the Veteran's claims file, interviewed the Veteran, and submitted a report analyzing his vocational capability. The Veteran reported a sedentary homebound existence, other than driving short distances for errands and medical appointments. E.J.C. indicated that the Veteran is unable to engage in any prolonged activities of any type, especially where physical exertion or being on his feet are involved. E.J.C. suggested that the Veteran is "unable to work in any capacity...primarily due to his being unable to be on his feet for any period of time and difficulty with using his hands for any prolonged functioning." E.J.C. concluded that the Veteran is precluded from performing work at the "light exertion level which involves standing up for six hours a day, or even sedentary work which while mainly sitting would require frequent use of the upper extremities for typing, computer input, filing, etc." E.J.C. went on to suggest that his symptoms, thus working capability, have been consistent since 2003, according to the Veteran's statements and the review of the medical history. E.J.C. concluded that the Veteran's diabetes and residual service-connected upper and lower extremity peripheral neuropathy "has resulted in his inability to secure or follow a substantially gainful occupation on a consistent, regular basis since January 2003." In November 2012, a VA examiner suggested that the Veteran's underlying diabetes is fairly controlled and does not limit his ability to work, but that the associated peripheral neuropathy does impact his work ability. The diabetes examiner referred the reader to the neurological examiner's report for more information. In the same month, the Veteran reported to the VA neurological examiner that he has been unable to perform his usual occupational tasks due to his peripheral neuropathy. The examiner confirmed that the Veteran is "unable to perform occupational tasks involving fine motor tasks and prolonged standing." The examiner went on to suggest, however, that the Veteran "is not entirely precluded from all forms of substantially gainful employment. Sedentary employment could be an option." In an April 2013 addendum, the examiner further explained that while the Veteran does have impairment of certain fine motor tasks and difficulty with prolonged standing, he does care for his grandson and take care of his own activities of daily living, such as clothing himself (zipping and buttoning), holding dishware, using hand tools, operating machine keyboards, using the telephone, operating a motor vehicle, and handling documents and money. In December 2012, E.J.C. submitted a Vocational Assessment Addendum with consideration of the November 2012 opinion. E.J.C. opined that the combination of the Veteran's inability to remain on his feet, as well as his limitations with fine motor tasks with his hands preclude the Veteran from performing work at the light exertion level. E.J.C. disagreed with the November 2012 VA examiner and opined that sedentary work is ruled out due to such sedentary work requiring the use of one or both upper extremities. "The inability to stand to perform light work or use his hands to perform sedentary work renders him unemployable at either level." Records from the Veteran's private physician, N.K., are also in the claims files. In February 2009, August 2009, February 2010, April 2011, October 2011, February 2012, and August 2012 this physician indicated that despite his illness, the Veteran is able to perform activities of daily living and is able to work; however, May 2009 notes indicate an impairment in activities of daily living. In March 2013, this physician noted that the Veteran described sensory dysfunction and the physician indicated in this clinical note that the Veteran was to avoid strenuous activities. In July 2013, following review of additional records and a telephone interview with the Veteran, E.J.C. submitted an additional Vocational Assessment Addendum. The Veteran reported to E.J.C. that he does care for a grandson, but that the grandson is age 16 and cares for himself other than needing a ride here and there. The Veteran was reported to be limited in standing. E.J.C. also noted that the fine motor tasks listed in the April 2013 VA examiner addendum "cannot be equated with the fine motor tasks required in a competitive work setting." Further, E.J.C. opined, "The ability to complete personal care or basic activities of daily living, at one's leisure in no way can be reflective of their ability to frequently use their hands in a structured employment setting where standards, timeliness, and productivity are being monitored. I continue to be of the opinion that the inability to stand to perform light work or use his hands frequently to perform sedentary work renders him unemployable at either level." The Board reaches the conclusion upon evaluation of the foregoing, particularly when viewed in light of VA's benefit-of-the-doubt doctrine, that the preliminary requirements for referral of this case for a TDIU on an extraschedular basis have been met. In so finding, substantial weight has been placed upon the numerous statements offered by E.J.C, discussing the vocational abilities of the Veteran, in addition to a clear indication that the Veteran initially stopped working in 2003 due to his insulin dependence, notwithstanding that there are other contrary findings of record. The Board is not without notice that the November 2012 VA examination report and April 2013 addendum directly state that the Veteran has the retained capacity for some form sedentary employment. That notwithstanding, the reports of E.J.C. document sound reasoning in disagreement with the VA examiner's opinion, and explain why the severity Veteran's lower extremity and upper extremity neuropathy, in combination, render him unable to stand and unable to utilize fine motor skills with his hands to the level that sedentary employment would require. The Board is aware that E.J.C. may not have reviewed the claims file in its entirety, however, it is clear from the reports that the Veteran was interviewed, at least telephonically, and that pertinent records, to include medical records and VA examination reports, were available for review and were considered in the rendering of the employability opinion. E.J.C. stated a definitive rationale for the conclusion that the Veteran is incapable of either strenuous or sedentary employment, and this pronouncement is based in actual conversation with the Veteran and medical history review. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (in evaluating probative value of a medical opinion, the examiner's review of records from claims file, while important, is not dispositive absent review and consideration of most relevant case facts). Thus, the probative weight to be assigned to E.J.C.'s stated opinions is readily apparent from the record. Where, as here, the competent evidence both substantiating and weighing against a claim on a material issue are about evenly balanced, the reasonable doubt doctrine necessitates that the question be resolved in the favor of the claimant. See 38 U.S.C.A. § 5107(b). See also Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Brown v. Brown, 5 Vet. App. 413, 421 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The instant case presents such circumstances in that the evidence regarding employability due to service-connected disability is, at least, in a state of relative equipoise. Under this essential rule, all reasonable doubt must be resolved in the Veteran's favor. Therefore, in light of the reasons set forth above, the Board finds that there are grounds to support an award of a TDIU. However, because the Veteran does not meet the schedular criteria for a TDIU, the Board must, under applicable procedure, refer this case to the VA Compensation and Pension Service to further review and ultimately issue a determination on the propriety of a TDIU on an extraschedular basis. The Board will retain jurisdiction over the issue through a remand order, which preserves the Veteran's right to appeal an unfavorable determination by the Director, VA Compensation and Pension Service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Refer the Veteran's claim to the Director, VA Compensation and Pension Service, for consideration of an award of TDIU on an extraschedular basis. 2. Thereafter, if the decision by the Director, VA Compensation and Pension Service is not fully favorable, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity for them to respond before the case is returned to the Board. The purpose of this remand is to assist the Veteran with the development of his claim. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs