Citation Nr: 1338634 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-34 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to a higher disability rating for residuals of left foot injury, currently evaluated as noncompensable prior to January 14, 2009 and as 10 percent disabling from that date. 3. Entitlement to a disability rating in excess of 10 percent for left upper extremity peripheral neuropathy. 4. Entitlement to a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy. 5. Entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy. 6. Entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy. 7. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2009, the RO increased the Veteran's rating for his residuals of left foot injury to 10 percent, effective from January 14, 2009 (the date that the Veteran underwent a VA examination that reflected increased severity of the disability). Since the increase does not date back to the receipt of the original claim, there are two distinct time periods to be considered for this disability. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App.447, 453-54 (2009). As the Veteran asserted in December 2012 that he is unemployable due to the combined effects of his peripheral neuropathy of his upper and lower extremities and diabetes mellitus, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision. The RO denied a TDIU in February 2013. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's current hypertension was not manifest in service or to a degree of 10 percent within 1 year of separation, is unrelated to service, and was not caused or aggravated by his service-connected diabetes mellitus. 2. Throughout the rating period, the Veteran's service-connected left foot injury residuals have included ankle tenderness on motion, with pain at least at the endpoints of motion, or moderate limitation of motion of the left ankle; marked limitation of motion of the ankle has not been present. 3. The Veteran's right and left upper extremity peripheral neuropathy does not produce or nearly approximate moderate incomplete paralysis of either median nerve. 4. The Veteran's right and left lower extremity peripheral neuropathy does not produce or nearly approximate moderate incomplete paralysis of either sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for a 10 percent rating, but no higher, for residuals of left foot injury, for the entirety of the rating period, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, Diagnostic Code 5271 (2013). 3. The criteria for a disability rating in excess of 10 percent for right or left upper extremity peripheral neuropathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8515 (2013). 4. The criteria for a disability rating in excess of 10 percent for right or left lower extremity peripheral neuropathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially 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 RO provided the Veteran pre-adjudication notice by a letter dated in December 2005. The notification substantially 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; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not initially advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, this notice was provided in August 2007. Moreover, the Board notes that service connection has been granted for right and left upper and lower extremity peripheral neuropathy, negating the need for any further downstream notice regarding those issues. Regarding the hypertension issue, the Veteran was given an opportunity, after the Dingess notice, to submit additional evidence, and this was followed by readjudication, curing the notice timing error. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board finds that he was given adequate VCAA notice, followed by adjudications. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in February 2006, February 2007, January 2009, and August 2010, and the Veteran failed to appear for VA examinations in January 2013. He has been afforded the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Service connection for hypertension The issue before the Board involves a claim of entitlement to service connection for hypertension, which the Veteran claims is related to his service-connected diabetes mellitus. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's service treatment records are silent for reference to hypertension. On service discharge examination in February 1972, his heart and vascular system were normal and his blood pressure was 120/80. Hypertension was not diagnosed. Hypertension is shown in an April 2003 VA medical record. The Veteran's BUN and creatinine were normal on VA evaluations in July and October 2005. On VA examination in February 2006, it was reported that the Veteran had no known hypertension-related renal disorders. The examiner opined that the Veteran's hypertension was as likely as not related to his diabetes mellitus. No reasons for this opinion were provided. On VA examination in February 2007, the Veteran's claims folder was reviewed and the examiner indicated that there were no symptoms of diabetic nephropathy. The Veteran's BUN, creatinine, and microalbumin were within normal limits. The examiner indicated that the Veteran's essential hypertension was not a complication of his diabetes mellitus as the Veteran's hypertension predated his diabetes mellitus and he had no nephropathy. It also was not worsened or increased by the Veteran's diabetes. On VA examination in August 2010, the Veteran's claims folder was available and it was noted that he denied symptoms of diabetic nephropathy. The examiner indicated that the Veteran's essential hypertension was not a complication of his diabetes mellitus, as it predated it. Also, it had not been worsened by his diabetes mellitus. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's hypertension. It was not manifest in service or to a degree of 10 percent within 1 year of separation, and no medical evidence relates it to service. Additionally, the preponderance of the evidence indicates that it was not caused or aggravated by his service-connected diabetes mellitus. He has no nephropathy. While the VA examiner in February 2006 opined that the Veteran's hypertension was as likely as not related to his diabetes mellitus, he did not explain how this could be, given the absence of nephropathy. In fact, no reasons were given for this opinion. This opinion is outweighed by the opinion by the February 2007 VA examiner, as that opinion indicated that the Veteran's hypertension could not be caused by his diabetes mellitus as he had no nephropathy. There is no express or specific evidence of record indicating that one's hypertension can be caused by diabetes mellitus, in the absence of nephropathy. On the question of aggravation of the Veteran's hypertension by his service-connected diabetes mellitus, the preponderance of the evidence is also against this. The two VA examiners who specifically addressed aggravation, in February 2007 and August 2010, noted that the Veteran's hypertension was not worsened by his diabetes mellitus and that he had no nephropathy or diabetic nephropathy or diabetic nephropathy symptoms. The opinion from the examiner in February 2006, that the Veteran's hypertension was "related to" his diabetes mellitus, must be discounted for the same reasons discussed immediately above in the paragraph regarding direct causation. In July 2006, the Veteran questioned the basis for the VA medical opinion indicating that his hypertension was not secondary to his hypertension. He essentially argued that his diabetes mellitus may have pre-existed his hypertension. Even if it did, however, he still has no diabetic nephropathy and so the February 2007 VA medical opinion, relying on that, remains the most probative evidence and as such provides a valid and convincing basis to deny the claim. The Veteran also argued in July 2006 that he had been diagnosed with kidney problems, reporting that a lab report noted that he had blood in his urine at one point, and so based on this, he should be awarded service connection for hypertension. The Veteran, however, being a layperson, is not competent to indicate that blood in his urine is an indication that his diabetes mellitus caused or aggravated his hypertension. This is a medical question which is beyond his competence to opine upon. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the above, service connection is not warranted for the Veteran's hypertension. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Higher ratings The Veteran contends that higher ratings are warranted for his left foot injury residuals and for his right and left upper and lower extremity peripheral neuropathy. He feels that his left foot disability warrants at least a 20 percent rating due to his symptoms and the extent of the disability. He argued in July 2007 that each lower extremity warrants at least a 30 percent rating for his neuropathy, and that each upper extremity warrants at least a 20 percent rating. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. 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 (2013). In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disabilities have not significantly changed, and so uniform ratings are warranted. The Veteran's left foot injury residuals are rated by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under that code, moderate limitation of motion of the ankle warrants a 10 percent rating. Marked limitation of motion of the ankle warrants a 20 percent rating. The Veteran's upper extremity neuropathy disabilities are rated by the RO under 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under this regulatory provision, a rating of 10 percent is warranted for mild incomplete paralysis of the median nerve of either hand. For the minor hand, a 20 percent rating is warranted for moderate incomplete paralysis of the median nerve. A 40 percent rating is warranted for severe incomplete paralysis of the median nerve. A maximum rating of 60 percent is warranted for complete paralysis of the median nerve; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515. For the major hand, a 30 percent rating is warranted for moderate incomplete paralysis of the median nerve. A 50 percent rating is warranted for severe incomplete paralysis of the median nerve. A maximum rating of 70 percent is warranted for complete paralysis of the median nerve; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. Id. The Veteran's lower extremity neuropathy disabilities are rated by the RO under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this regulatory provision, a rating of 10 percent is warranted for mild incomplete paralysis of the sciatic nerve of either lower extremity. A 20 percent rating is warranted for moderate incomplete paralysis of either sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of either sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of either sciatic nerve, with marked atrophy. A maximum rating of 80 percent is warranted for complete paralysis of either sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A rating note in 38 C.F.R. § 4.124a indicates that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree, and 38 C.F.R. § 4.123 (2013) indicates in pertinent part that neuritis not characterized by organic changes has a maximum rating of moderate. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, and disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 indicate that the intention of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2013). On VA monofilament testing in October 2005, sensation in the Veteran's feet was normal. On VA examination in February 2006, the Veteran reported a crush injury to his left foot in August 1971, in the left malleolar region. He reported experiencing occasional mild tenderness in the left ankle lateral malleolar region without stiffness, swelling, or weakness. On examination, there was no objective evidence of painful motion, edema, instability, or weakness, but the ankle was tender on motion. The Veteran had a normal gait, balance, and posture without prosthetic devices, and there were no callosities, breakdown, or unusual shoe wear pattern. He had a normal posture on standing, squatting, supination, pronation, etc. Left ankle dorsiflexion was from 0 to 20 degrees, with pain at 20 degrees, and plantar flexion was from 0 to 25 degrees, with pain at 25 degrees. There was no change in range of motion with repetition, and no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. There were no flare-ups. The diagnosis was status post crush injury to the left lateral malleolar region with mild residual symptoms. On VA evaluation in January 2007, the Veteran's gait and motor behavior appeared grossly intact. In May 2007, the Veteran was noted to have a steady gait. He complained of hand weakness. Strength was 5/5 and sensation was decreased to monofilament. The impressions were diabetic neuropathy, and bilateral carpal tunnel syndrome. Electromyography in July 2007 confirmed carpal tunnel syndrome, mild in the left hand and moderate in the right. On VA examination on January 14, 2009, the Veteran complained of sharp left foot pain on ambulation. He indicated that his left foot was weaker than the right, that the left foot fatigued easily and lacked endurance, and that he used a cane. On examination, the Veteran had left ankle dorsiflexion to 20 degrees with pain throughout movement, and plantar flexion to 45 degrees with pain throughout movement. Range of motion was about the same after 3 repetitions. The left ankle had weakness in dorsiflexion, plantar flexion, inversion, and eversion. Motor strength in the left ankle was 4/5 for dorsiflexion and plantar flexion, and 5/5 in the right ankle for them. The Veteran's gait appeared fairly normal and he could walk on heels and toes and squat. On VA examination in August 2010, the Veteran's reflexes were 1+ bilaterally at the triceps, biceps, brachioradialis, and ankle, and 2+ for knee jerks. Babinski was normal, showing plantar flexion. The median nerves bilaterally had decreased vibration sense in the hands. The sciatic nerves had decreased vibration sense in the feet. Otherwise, they had normal pain on pinprick, position sense, and light touch, and no dysesthesias. Motor examination was 5/5 throughout the upper and lower extremities, with normal muscle tone and no atrophy. The Veteran failed to report for a VA examination in January 2013. Based on a review of the evidence, the Board concludes that a 10 percent rating, but no more, is warranted for the Veteran's left foot injury residuals for the entirety of the rating period. On VA examination in February 2006, the Veteran's left ankle was tender on motion, dorsiflexion was to 20 degrees with pain at that point, and plantar flexion was to 25 degrees with pain at that point. The examiner felt that the Veteran had mild residual symptoms from his left ankle crush injury. The provisions of 38 C.F.R. § 4.59 indicate that at least the minimum compensable rating for the joint is to be awarded for actually painful joints due to healed injury. In this case, that is a 10 percent rating under Diagnostic Code 5271. The question then becomes whether a rating greater than 10 percent is warranted for any part of the rating period. As intimated in the paragraph above, the Board concludes that this is not the case. On VA examination in February 2006, the motion indicated above was present, and the examiner indicated that there were mild residual symptoms. DeLuca factors were absent except for pain at the endpoints of no more than moderately limited motion. Likewise, DeLuca factors reported in January 2007 do not warrant more than a 10 percent rating, as the Veteran's gait and motor behavior was intact and he had 5/5 strength. On VA examination VA examination in January 2009, the Veteran had left ankle dorsiflexion to 20 degrees and plantar flexion to 45 degrees without pain throughout movement, and range of motion was about the same after 3 repetitions. He had weakness in dorsiflexion, plantar flexion, inversion, and eversion, but motor strength was 4/5, reflecting mild weakness at most. Also, his gait was normal and he could walk on heels and toes and squat. Given all of the above findings, the Board concludes that his disability has not nearly approximate marked limitation of motion of the left ankle during any part of the rating period, even when the DeLuca factors are considered. Based on a review of the evidence, the Board also concludes that disability ratings greater than 10 percent are not warranted for the Veteran's service-connected right and left upper and lower extremity peripheral neuropathy. Moderate incomplete paralysis of the median or sciatic nerves is not shown or nearly approximated, even when the DeLuca factors are considered. The findings have been mostly normal, with a remarkable abnormality being decreased sensation. The Veteran has had normal tone and no associated atrophy, and normal muscle strength except for in the left ankle. The slight weakness in the left ankle has been compensated in the rating for his left foot injury under Diagnostic Code 5271. It may not be compensated twice. 38 C.F.R. § 4.14 (2013). Extra Schedular Considerations The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation, 38 C.F.R. § 3.321(b)(1), as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disabilities reasonably describe his disability levels and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against higher ratings than those indicated herein for the disabilities at issue. Accordingly, higher ratings then those indicated must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Should the service-connected disabilities increase in severity in the future, the Veteran may always file claims for increased ratings. Although the evidence of record does not support a total schedular disability rating for the Veteran's upper and lower extremity peripheral neuropathies, as noted above, a claim for a TDIU was raised by Veteran when he indicated in December 2012 that he feels that his diabetes mellitus and bilateral upper and lower extremity peripheral neuropathies render him unemployable. See Rice, 22 Vet. App. 453-54. As the TDIU aspect of the Veteran's claim is being for remanded for further development, it is unnecessary to discuss this issue further at this time. ORDER Service connection for hypertension is not warranted. A 10 percent rating, but no more, is warranted for the Veteran's residuals of left foot injury throughout the rating period, subject to the controlling regulations applicable to the payment of monetary benefits. Ratings in excess of 10 percent for left and right upper and lower extremity peripheral neuropathy are not warranted. REMAND Pertinent to a potential TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. 453-54. While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim for left and right upper and lower extremity peripheral neuropathy (adjudicated above), further development is necessary for a fair adjudication of the TDIU aspect of such claim. The Board notes that the RO denied the Veteran's claim for a TDIU in February 2013. However, the Veteran disagreed with the rating to be assigned for his peripheral neuropathies in July 2007, and he did not limit his disagreement to a specific rating percentage, and so the matter of a 100 percent rating based on TDIU was already denied, and a notice of disagreement was received with respect to it in July 2007. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board believes that the proper action to take at this point is to remand the issue to the RO for a statement of the case on the specific matter of TDIU, under Manlincon v. West, 12 Vet. App. 238 (1999). Upon remand, the RO may take any further action necessary to develop the claim further, such as sending the Veteran a TDIU claim form and scheduling any examination, etc., if warranted. Accordingly, the case is REMANDED for the following action: Further develop the claim for a TDIU, if and as appropriate. Thereafter, issue the Veteran a statement of the case on the matter of entitlement to a TDIU. If he perfects an appeal of that determination, forward it to the Board in accordance with the usual appellate procedures. 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs