Citation Nr: 18142894 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-06 218A DATE: October 17, 2018 ORDER Entitlement to service connection for diabetic peripheral neuropathy, left upper extremity, is granted. Entitlement to service connection for diabetic peripheral neuropathy, right upper extremity, is granted. Entitlement to service connection for diabetic peripheral neuropathy, left lower extremity, is granted. Entitlement to service connection for diabetic peripheral neuropathy, right lower extremity, is granted. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for pyorrhea is remanded. Entitlement to special monthly pension based on the need for regular aid and attendance or based on housebound status is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of entitlement to a separate compensable rating for bilateral cataracts associated with service-connected diabetes mellitus, type II, was raised in a March 2012 statement and is referred to the Agency of Original Jurisdiction for adjudication. FINDINGS OF FACT 1. The Regional Office (RO) received a claim for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities secondary to diabetes in March 2010. 2. In a September 2010 rating decision, the RO granted entitlement to service connection for diabetes mellitus, type II, and for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities as secondary to the diabetes mellitus, type II. 3. There is not clear and unmistakable error in the September 2010 rating decision’s finding that the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities is causally related to the service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetic peripheral neuropathy, left upper extremity, have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for diabetic peripheral neuropathy, right upper extremity, have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to service connection for diabetic peripheral neuropathy, left lower extremity, have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for entitlement to service connection for diabetic peripheral neuropathy, right lower extremity, have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1969 to August 1971. In his substantive appeal, the Veteran requested a Board hearing by live videoconference. However, in August 2015, the Veteran, through his representative, asked that the request for a Board hearing be withdrawn. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. In March 2010, VA received from the Veteran a claim for entitlement to service connection for diabetes mellitus, type II, and for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities secondary to the diabetes. The Veteran underwent a VA diabetes examination in September 2010. At the examination, the Veteran reported loss of sensation in the fingers and toes. Based on that report, the examiner diagnosed the Veteran with diabetic neuropathy. In the September 2010 rating decision, the RO granted the Veteran entitlement to service connection for diabetes mellitus, type II, and for diabetic peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. In so doing the RO stated, “We realize that you have … diabetic peripheral neuropathy of the left and right upper extremity and left and right lower extremity related to your diabetes.” The September 2010 rating decision constitutes a final decision recognizing the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities as caused by or a manifestation of his service-connected diabetes mellitus, type II. As such, the decision may not be revised except upon a finding of clear and unmistakable error. See 38 C.F.R. §§ 3.104(a), 3.105(a). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To be clear and unmistakable, an error must be “undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). In this case, the evidence of record at the time of the September 2010 rating decision included the September 2010 VA examiner’s finding that the Veteran had peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities that was related to his diabetes. As such, it was at least debatable whether the Veteran’s peripheral neuropathy was secondary to his service-connected diabetes mellitus, type II, and there is not clear and unmistakable error in the RO’s decision in the September 2010 rating decision recognizing the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities as secondary to his service-connected diabetes mellitus, type II. Therefore, revision of that decision is not permissible. See 38 C.F.R. § 3.104(a); Russell, 3 Vet. App. at 313. Accordingly, the Board concludes that the criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, as secondary to the service-connected diabetes mellitus, type II, is warranted. REASONS FOR REMAND The Veteran was scheduled for VA examinations in March and April 2017, but did not appear for those examinations. He has since indicated that he was unable to attend the examinations due to limited mobility and lack of transportation. The VA treatment records reflect that the Veteran uses a motorized wheelchair and that he has told his treatment providers that he has had problems attending appointments due to lack of transportation. The Veteran has assured VA, “In the future, I will make every effort in order to make my examinations with reliable transportation. Please reschedule me for an examination.” The Board finds that good cause has been shown for the Veteran not appearing for the scheduled examinations, and that the Veteran should be afforded another opportunity to be examined. See 38 C.F.R. § 3.655. In addition, there appears to be outstanding VA treatment records that may be relevant to the issues remaining on appeal. The record currently does not contain any VA treatment records for the periods from May 19, 2010, to January 26, 2015, from November 10, 2016, to March 5, 2017, and from January 12, 2018, to the present. The Veteran indicated in June 2013 that was being treated at a VA medical facility, and a February 2015 statement of the case lists as evidence considered VA treatment records dating from April 2007 through January 2015. VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues remaining on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the periods prior to January 25, 2008; from May 19, 2010, to January 26, 2015; from November 10, 2016, to March 5, 2017; and from January 12, 2018, to the present. 2. Reschedule the Veteran for the VA examination or examinations that were originally scheduled in March and April 2017. The Veteran is advised that it is his responsibility to report for the examination or examinations and to cooperate in the development of his claims. Under 38 C.F.R. § 3.655 the consequences for failure to report for a VA examination without good cause may include denial of the claim. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel