Citation Nr: 1805693 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-03 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus type II with chronic kidney disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1968 to October 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2008, the Veteran presented testimony at a hearing held before a Decision Review Officer (DRO). This appeal was remanded by the Board in October 2012 and February 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks a higher rating for his service-connected diabetes mellitus with chronic kidney disease. Specifically, the Veteran asserts that he has bilateral upper and lower extremity peripheral neuropathy related to his service-connected diabetes. See October 2017 informal hearing presentation. In this regard, VA treatment records include a diagnosis of diabetic peripheral neuropathy. See January 2008, March 2008, January 2012, April 2013, and February 2014 VA treatment records. However, June 2007, November 2008, February 2016, and April 2017 VA examination reports do not recognize a diagnosis of diabetic neuropathy. The February 2016 examination report acknowledged the Veteran's subjective complaints of intermittent pain and paresthesias of the bilateral lower extremities but stated that an EMG must be conducted in order to determine a diagnosis. However, the examination reports do not adequately consider the several VA treatment records which include a diagnosis of peripheral neuropathy. Given that 38 C.F.R. § 4.119, diagnostic code 7913, note 1, directs VA to evaluate complications of diabetes when rating diabetes, the Board finds that an additional VA examination is required to determine the nature, extent, and severity of the Veteran's diabetes and its associated complications. 38 C.F.R. § 4.119, diagnostic code 7913, note 1. The examiner should specifically state whether the Veteran has a diagnosis of diabetic peripheral neuropathy. In rendering the diagnosis, the examiner should specifically review the VA treatment records which include a diagnosis of diabetic neuropathy. Additionally, the Veteran asserts that he is entitled to a separate compensable rating for his service-connected chronic kidney disease. See October 2017 informal hearing presentation. February 2016 and April 2017 VA examination reports stated that the Veteran did not have diabetic nephropathy or renal dysfunction. However, the Board notes that a February 2010 rating decision granted chronic kidney disease as secondary to his service-connected diabetes mellitus. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (when the RO has listed a condition as service-connected on a rating sheet, it has effectively granted service connection). Accordingly, upon remand, the AOJ should consider whether a separate compensable rating for service-connected chronic kidney disease is warranted. Additionally, the April 2017 VA examination report and a September 2016 VA treatment record include a diagnosis of nonproliferative diabetic retinopathy. Thus, upon remand, the AOJ should consider whether a separate compensable rating for diabetic retinopathy is appropriate. Moreover, as the issue of entitlement to TDIU is intertwined with the issue of entitlement to a higher rating for diabetes mellitus, the TDIU claim must be remanded as well. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, the case is REMANDED for the following action: 1. Associate records of VA treatment dated since March 2017 with the claims file. 2. Provide the Veteran an opportunity to identify or provide any outstanding private treatment records. Identified records should be sought. Any negative responses should be associated with the claims file. 3. Invite the Veteran to submit lay or medical evidence from himself and other individuals who have first-hand knowledge regarding the severity of his diabetes mellitus and associated manifestations and the impact of his service-connected disabilities on his ability to work. 4. Provide notice to the Veteran that failure to appear without good cause for a future examination in support of his appeal for a higher rating for diabetes could result in the denial of the claim in accordance with 38 C.F.R. § 3.655(b). 5. Schedule the Veteran for appropriate VA examinations to determine the severity and manifestations of his service-connected diabetes mellitus and associated complications. Any and all studies, tests, and evaluations deemed necessary by the examiners should be performed. The examiner should specifically determine whether the Veteran has diabetic peripheral neuropathy of the bilateral upper and lower extremities. In rendering the diagnosis, the examiner should consider the January 2008, March 2008, January 2012, April 2013, and February 2014 VA treatment records that include notations of diabetic neuropathy. The examiner should also discuss the severity of the Veteran's nonproliferative diabetic retinopathy. See September 2016 treatment record and April 2017 VA examination report. The examiner should also discuss the severity of the Veteran's service-connected chronic kidney disease. The examiner should note that the Veteran is already service-connected for chronic kidney disease. 6. Then readjudicate the appeal, to specifically include whether the Veteran is entitled to a separate compensable rating for neuropathy, retinopathy, or chronic kidney disease and entitlement to a TDIU. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).