Citation Nr: 1752635 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 17-10 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for history of end stage renal disease since 1995, resulting in kidney transplant in 2003 (claimed as renal disease), to include as secondary to service-connected disability. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability. 3. Propriety of the reduction of the rating for diabetes mellitus, type II, from 60 to 20 percent disabling, effective September 19, 2016. 4. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, right lower extremity, associated with diabetes mellitus, type II. 5. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, left lower extremity, associated with diabetes mellitus, type II. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 7. Entitlement to a compensable rating prior to April 14, 2016, and a rating in excess of 40 percent thereafter, for residuals of prostate cancer with voiding dysfunction. REPRESENTATION Veteran represented by: Samuel K. Richardson, Agent ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The February 2017 rating decision reflects that separate 20 percent ratings were assigned for diabetic peripheral neuropathy of the right and left lower extremities. As the disabilities are complications associated with the Veteran's diabetes mellitus, they are also on appeal as part and parcel of the Veteran's claim for increased ratings for diabetes mellitus. 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, Note (1). As such, the issues are included on the title page. The Board also notes that while the statement of the case included the issue of whether new and material evidence had been submitted to reopen a claim for service connection for hypertension, the record reflects that this issue was not addressed in the Veteran's notice of disagreement and the Board did not specifically address it in his substantive appeal. Consequently, the Board finds that it is not an additional subject for current appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of an increased rating for residuals of prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The May 2008 rating decision denied service connection for renal disease; the Veteran did not appeal the decision. 2. Evidence received since the May 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for renal disease. 3. The Veteran's renal disease was permanently aggravated by his service-connected diabetes mellitus. 4. The Veteran's erectile dysfunction is attributable to his service-connected residuals of prostate cancer. 5. Prior to the February 2017 rating decision that reduced the Veteran's diabetes rating from 60 percent to 20 percent, the RO never informed him of the proposed reduction. 6. The procedural requirements regarding the reduction of disability ratings were not properly followed, and the procedure undertaken in this case to reduce the Veteran's diabetes mellitus rating resulted in the deprivation of his due process rights. 7. Diabetic peripheral neuropathy of the right lower extremity is manifested by moderately severe incomplete paralysis. 8. Diabetic peripheral neuropathy of the left lower extremity is manifested by moderately severe incomplete paralysis. 9. The Veteran is prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The May 2008 rating decision, which denied service connection for renal disease, is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. § 20.302, 20.1103 (2017). 2. The criteria to reopen the claim of service connection for renal disease have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for renal disease, as secondary to service-connected diabetes mellitus based on aggravation, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for service connection for erectile dysfunction, as secondary to service-connected residuals of prostate cancer, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. From September 19, 2016, the reduction in the Veteran's rating for diabetes mellitus, type II, was not legally proper; the 60 percent disability rating is therefore restored. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.119, DC 7913 (2017). 6. The criteria for an initial separate 40 percent rating, but not higher, for diabetic peripheral neuropathy of the right lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8720 (2017). 7. The criteria for an initial separate 40 percent rating, but not higher, for diabetic peripheral neuropathy of the left lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8720 (2017). 8. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, and the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the evidence of record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). I. Claim to Reopen The Veteran's initial claim for service connection for renal disease was denied in a December 1995 rating decision, which was not appealed by the Veteran. The Veteran filed a claim to reopen which was denied in May 2008. The Veteran did not appeal the decision. Thus, the May 2008 rating decision became final with regard to renal disease claim. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 20.302, 20.1103. VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial for the claims is the May 2008 RO decision. For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Since May 2008, the Veteran was afforded an October 2016 VA examination for his diabetes. The examiner indicated that the Veteran suffers from renal disease and that his diabetes as likely as not permanently aggravated his renal disease. This VA examination report is new and material because it was received subsequent to the May 2008 rating decision and also supports a link between the Veteran's renal disease and his service-connected diabetes mellitus. Thus, the new evidence relates to an unestablished fact necessary to substantiate the claims, and it raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, the claim of service connection for renal disease is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. A. Renal Disease The Veteran submitted a March 2014 statement in which he contended that his renal disorder was secondary to his diabetes mellitus. The Board notes a post-service November 1996 medical record was received which indicated the Veteran was diagnosed with end stage renal disease, secondary to glomerular sclerosis and nephrotic syndrome with need for hemodialysis impending on presentation. He was thereafter afforded an October 2016 VA examination for diabetes mellitus in which the examiner diagnosed the Veteran with renal disease. She noted his renal dysfunction requires dialysis regularly and causes symptoms of edema, generalized poor health and weakness. She indicated the Veteran's diabetes mellitus as likely as not permanently aggravated his renal disease. Based on this opinion, the Board finds that the evidence has reached a level of equipoise and the Veteran's claim for service connection for renal disease, as related to diabetes, is warranted. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§3.102, 3.310. The evidence supports that the Veteran has suffered from a renal disability for over twenty years which has worsened recently. The October 2016 examiner's opinion established that the Veteran's renal disease symptoms have worsened, including having a kidney removed and suffering from symptoms of edema, generalized poor health, weakness and fatigue. Further, her opinion supports that the Veteran's diabetes mellitus aggravated, or permanently worsened, his long standing renal disease. Therefore, Board determines the weight of the evidence favors the claim with regard to whether the Veteran's renal disease has been permanently worsened by his service-connected diabetes mellitus. Thus, service connection for renal disease is warranted on a secondary basis. See 38 C.F.R. § 3.310. B. Erectile Dysfunction The Veteran's contends that his erectile dysfunction is related to a service-connected disability. Following the Veteran's April 2014 claim, he was afforded a March 2015 VA examination for his diabetes mellitus. The examiner indicated the Veteran did not have erectile dysfunction due to his diabetes. The Veteran was afforded an April 2016 VA examination for his service-connected prostate cancer. The examiner found the Veteran had erectile dysfunction and that the disorder was as likely as not attributable to his residuals of prostate cancer. The Board notes the Veteran was also afforded an October 2016 VA examination in which the examiner did not indicate erectile dysfunction was related to diabetes. The Board funds that a level of equipoise has been reached with regard to erectile dysfunction. The Veteran has erectile dysfunction which is related to his service-connected residuals of prostate cancer. The VA diabetes examinations from March 2015 and October 2016 found that there was no erectile dysfunction related to the Veteran's ongoing diabetes. However, the Veteran's is service connected for residuals of prostate cancer and the April 2016 examiner determined the Veteran has erectile dysfunction which is attributable to that service-connected condition. Therefore, the Board finds that, when resolving reasonable doubt in favor of the Veteran, his post-service erectile dysfunction is secondary to his service-connected residuals of prostate cancer. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. III. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified 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. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. A. Diabetes Mellitus Reduction The Veteran contends that an increased rating is appropriate for his diabetes which was reduced from 60 to 20 percent in the February 2017 rating decision. The March 2015 rating decision increased his diabetes rating to 60 percent effective March 14, 2014. However, the February 2017 rating decision then reduced his rating to 20 percent effective September 19, 2016. The Veteran's representative submitted a February 2017 substantive appeal which indicated the Veteran's due process rights were denied in the reduction of the diabetes rating with no explanation. When a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105 (e), (i). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105 (e). A reduction is void ab initio if the RO reduces a veteran's disability rating without following these requirements. See, e.g., Greyzck v. West, 12 Vet. App. 288, 292 (1999). Additionally, Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). These requirements, however, do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Further, "[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). The Board finds that the RO's actions did not satisfy all procedural requirements and the Veteran timely appealed the reduction with the February 2017 substantive appeal. Without reaching the merits of the propriety of the reduction in this case, the Board must find that the reduction is void ab initio due to the RO's failure to adequately follow the procedural requirements set forth in 38 C.F.R. § 3.105 (e), regarding reduction in benefits; as such failure particularly deprived the Veteran of adequate due process protections in this case. The RO did not inform the Veteran of the proposed reduction to the disability rating for his service-connected diabetes mellitus, but instead issued a rating decision which finalized the action. Additionally, the RO also did not provide the correct notice in the February 2017 statement of the case which simply denied an increased rating in excess of 60 percent for diabetes. Additionally, the RO failed to notify the Veteran of his right to a predetermination hearing at which he could provide testimony regarding the current severity of his service-connected diabetes mellitus prior to finalization of the reduction in benefits. Thus, the reduction in this case was not proper, and completely deprived the Veteran of all his due process rights, particularly with regard to a predetermination hearing. Accordingly, the Board finds that the reduction in this case is void ab initio, and the 60 percent disability rating for his service-connected diabetes mellitus is restored, effective from September 19, 2016. See 38 C.F.R. § 3.105 (e), (i). B. Bilateral Lower Extremity Peripheral Neuropathy The February 2017 rating decision awarded the Veteran separate 20 percent ratings for diabetic peripheral neuropathy, left and right lower extremities, effective September 19, 2016. These disorders are associated with the Veteran's service-connected diabetes mellitus. Under DC 7913, Note (1) allows evaluation of compensable complications of diabetes mellitus separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. The criteria for evaluating the severity or impairment of the sciatic nerve is set forth under DCs 8520 (paralysis), 8620 (neuritis), and 8720 (neuralgia). See 38 C.F.R. § 4.124a. Under DC 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the lower extremity; the foot dangles and drops, no active movement is possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran was afforded an October 2016 VA examination in which the Veteran was found to have diabetes mellitus with diabetic peripheral neuropathy of the bilateral lower extremities. The Veteran reported the date of onset of the disorders was 1996, as he was diagnosed with diabetes at that time. He reported experiencing a "fire" sensation in his bilateral lower extremities and the conditions have worsened over time. The October 2016 examiner found symptoms in both lower extremities includes constant moderate pain, severe intermittent pain, severe paresthesias and/or dysesthesias and severe numbness. She reported the Veteran has normal strength and reflexes in the lower extremities; however, he suffers decreased sensation with regard to touch and cold. Further, she found no muscle atrophy in the Veteran's lower extremities and indicated trophic changes described as smooth, shiny skin. The examiner indicated sciatic nerve incomplete paralysis in both lower extremities, found to be moderately severe and femoral nerve incomplete paralysis, indicated as moderate. In view of the evidence overall, including the October 2016 VA examination report, the Board finds that the disability picture due to peripheral neuropathy of the lower extremities more closely approximates moderately severe incomplete paralysis. Thus, initial separate 40 percent ratings are warranted for peripheral neuropathy of the right and left lower extremities. While increased ratings are warranted for both lower extremities, ratings in excess of 40 percent are not warranted for peripheral neuropathy of the lower extremities at any point during the appeal. The Board's finding in this respect is consistent with the October 2016 VA opinion as she found no muscular atrophy on examination. The objective medical evidence does not establish more than moderately severe incomplete paralysis of the sciatic nerve in either the right or left lower extremity, even when affording reasonable doubt in favor of the Veteran. In sum, the evidence is in favor of separate initial 40 percent ratings for peripheral neuropathy of the right and left lower extremities. The preponderance of the evidence is against initial separate ratings in excess of 40 percent for the disorders and there is no doubt to be resolved. IV. TDIU A TDIU may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (a). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). The Veteran is service connected for prostate cancer, with a noncompensable rating prior to April 14, 2016, and a 40 percent rating from that date. The Board notes the increased rating claim for residuals of prostate cancer is being remanded presently. The Veteran is also service connected for diabetes mellitus which, after the present decision, is rated at 60 percent from March 14, 2014. Additionally, he is service connected for peripheral neuropathy of both lower extremities, rated as 40 percent presently. Thus, although the current decision adjusts the Veteran's overall rating, he initially still meets the schedular requirements under 38 C.F.R. § 4.16 (a), since March 14, 2014. Following the Veteran's April 2014 claim for a TDIU, he was afforded a March 2015 VA examination for his diabetes mellitus and prostate cancer disabilities. The Veteran reported to the examiner that he had started back on dialysis which affected his ability to work. The Board notes the Veteran's representative submitted a March 2015 statement in which he indicated the Veteran has not been gainfully employed since 1995 based on the severity of his service-connected disabilities. The Veteran was afforded an April 2016 VA examination for prostate cancer which determined the condition had no effect on his ability to work. Thereafter, the Veteran was afforded an October 2016 VA examination for multiple disorders. The October 2016 diabetes examiner stated the disorder impacts his ability to work, as he is unable to perform strenuous or arduous physical activities due to generalized fatigue or weakness. The October 2016 examiner, who discussed peripheral neuropathy of his lower extremities, indicated the conditions had worsened over time. She reported he has constant pain, severe at times, and that his ability to work is diminished due to his inability to walk or stand for prolonged periods of time. Further, with regard to his renal disease, the examiner indicated his ability to work is diminished due to ongoing weakness and fatigue restricting him from physical or strenuous activity. She noted he also has frequent appointments for dialysis which would preclude his ability to maintain employment. The Board finds that the evidence has reached a level of equipoise and the Veteran's service-connected disabilities, as likely as not preclude him from securing or following a substantially gainful occupation, since the date of the claim. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that there are multiple VA examinations for his various disorders which overall support that he is prohibited from securing or maintaining at least some employment due to his service-connected conditions. The evidence indicates that he suffers severe diabetes symptoms, including worsening symptoms of peripheral neuropathy, renal disease and prostate cancer. The most recent October 2016 examination reports provide the weight of the medical evidence and establish the Veteran is not capable of any employment due to his service-connected disabilities. The examiner indicated the Veteran's diabetes impacts his ability to work, as he is unable to perform strenuous or arduous physical activities due to generalized fatigue or weakness. His peripheral neuropathy of the lower extremities has worsened causing great pain, and his renal disease causes diminished work capacity due to ongoing weakness and fatigue. Therefore, the Board finds that entitlement to a TDIU is warranted in this case. The Veteran meets the schedular requirements under 38 C.F.R. § 4.16 (a) since the date of the claim and the effect of his disabilities prevent him from securing and maintaining substantially gainful employment, after resolving all reasonable doubt in his favor. Thus, entitlement to a TDIU is warranted throughout the entire appeal period. ORDER New and material evidence having been received, the claim to reopen service connection for renal disease, and service connection for renal disease, as secondary to diabetes mellitus, is granted. Service connection for erectile dysfunction, as secondary to service-connected residuals of prostate cancer, is granted. Restoration of a 60 percent rating for service-connected diabetes mellitus, type II, from September 19, 2016, is granted, subject to the law and regulations governing payment of monetary benefits. An initial 40 percent rating, but not higher, for peripheral neuropathy of the right lower extremity, is granted, subject to the law and regulations governing payment of monetary benefits. An initial 40 percent rating, but not higher, for peripheral neuropathy of the left lower extremity, is granted, subject to the law and regulations governing payment of monetary benefits. A TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran's claim for residuals of prostate cancer was granted by the RO in a March 2015 rating decision and he was awarded a noncompensable rating. Thereafter, the RO granted an increased rating to 40 percent, effective April 14, 2016, in a February 2017 rating decision. The Veteran was afforded an April 2016 VA examination in which the examiner indicated the Veteran has a voiding dysfunction which causes urine leakage. He indicated this leakage requires absorbent material which must be changed two to four times per day. He indicated no required use of an appliance and frequency includes daytime voiding every one to two hours and nighttime awakening to void three to four times per night. He indicated symptoms of hesitancy, slow stream and weak stream. As noted, the RO increased the Veteran's rating to 40 percent thereafter. The Board notes that the Veteran's representative submitted an August 2017 statement in which he stated the Veteran is being treated for present prostate cancer. He indicated the disease was in remission for several years, but has now returned. He indicated the Veteran is also on weekly dialysis. As this statement indicates a potential worsening of the Veteran's prostate condition, the Board finds another VA examination is necessary to determine the current severity of the prostate disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his prostate cancer residuals. The entire claims file should be reviewed. All indicated tests and studies should then be performed, and all findings reported in detail. A complete rationale should be provided for all opinions offered. 2. Then readjudicate the claim remaining on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs