Citation Nr: 1417792 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-33 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction. 2. Entitlement to a separate compensable rating for diabetic peripheral neuropathy. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D.Cleary INTRODUCTION The Veteran served on active duty from June 1964 to June 1967. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has since moved to New Jersey and the Newark RO now has jurisdiction of this case. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2012. A transcript of the hearing is associated with the claims file. Since the hearing, the Veteran has submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In March 2013, the Board remanded this case for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At his January 2013 hearing, the Veteran reported that his activities had been restricted for over four years. The March 2009 and May 2012 VA examinations found no restriction of activities. An August 2009 letter from Dr. Shah stated that while it was felt that regular exercise is beneficial for the management of the Veteran's disabilities, including diabetes mellitus, it was recommended that he avoid strenuous activities due to his diabetes. Instead, he was encouraged to seek out alternate forms of exercising, like swimming. This was reiterated in a later, undated letter that was received in August 2010. In a report form dated May 25, 2013, Dr. Birnaum, noted that the Veteran needed "restrictive activity so [he] doesn't develop sores of feet due to his neuropathy." Thus, while the private physicians note restrictions on activities, it is unclear whether this meets the regulation of activities requirement listed in the rating criteria. Additionally, the record shows diagnoses of peripheral neuropathy of the bilateral upper and lower extremities. The May 2012 VA peripheral nerves examiner indicated that the Veteran had diabetic peripheral neuropathy of the extremities, but did not identify complete or incomplete paralysis of any specified nerve. Instead, this examiner indicated that each listed nerve was normal. This is inconsistent with his findings that the Veteran has diabetic peripheral neuropathy. Furthermore, as the affected nerve is not identified, the proper rating criteria cannot be properly ascertained. Thus an addendum opinion is necessary to clarify these findings. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims folder to the May 2012 VA diabetes mellitus examiner or, if she is unavailable, to another suitably qualified VA examiner for the purpose of obtaining an addendum opinion. Specifically, the examiner is asked to address the private physicians' statements regarding restriction of the Veteran's activities (summarized in this document) and determine whether his diabetes mellitus requires regulation of activities. All opinions should be accompanied by clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 2. Afford the Veteran a VA peripheral nerves examination to determine the nature and severity of any diabetic peripheral neuropathy. The claims file and a copy of this examination should be made available to the examiner. For any diabetic peripheral neuropathy found, identify the peripheral nerve(s) involved and its severity. All opinions should be accompanied by clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 3. Thereafter, readjudicate the claims in light of the additional evidence obtained. If any of the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).