Citation Nr: 18142963 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-24 069 DATE: October 17, 2018 ORDER Entitlement to an effective date earlier than April 1, 2015 for the award of a 70 percent disability rating for post-traumatic stress disorder (PTSD) is denied. Entitlement to a disability rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, with diabetic retinopathy and status post amputation of the right distal second toe is remanded. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetes mellitus, type II, with diabetic retinopathy and status post amputation of the right distal second toe is remanded. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the right upper extremity is remanded. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the left upper extremity is remanded. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the left lower extremity is remanded. FINDINGS OF FACT 1. A claim for an increased disability rating for PTSD was received by VA on April 1, 2015. 2. It is not factually ascertainable that the Veteran’s PTSD was 70 percent disabling prior to April 1, 2015. 3. From the entire appeal period, total occupational and social impairment due to PTSD has not been shown. 4. The evidence does not demonstrate that the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than April 1, 2015 for the award of a 70 percent disability rating for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran’s TDIU claim is part and parcel of the increased rating claim on appeal, and is properly before the Board. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, it appears that VA has obtained all outstanding VA treatment records. 1. Entitlement to an effective date earlier than April 1, 2015 for the award of a 70 percent disability rating for PTSD The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award “shall not be earlier than the date of receipt of application thereof.” 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim.” 38 U.S.C. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2). The phrase “otherwise, date of receipt of claim” applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term “increase” as used in 38 U.S.C. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2017). The Veteran is seeking a disability rating in excess of 70 percent for his PTSD. He is also seeking an effective date prior to April 1, 2015 for that 70 percent disability rating for PTSD. The Board finds that as the effective date claim impacts the analysis of the higher evaluation claim, the effective date claim will be addressed first. On April 1, 2015, VA received a statement from the Veteran requesting an increased disability rating for his PTSD. The Veteran’s claims file contains no communication from or documents submitted by the Veteran that remain unadjudicated prior to his April 1, 2015 letter regarding his PTSD. The June 2015 rating decision on appeal assigned an effective date of April 1, 2015, the date of the claim for an increased rating, for the higher evaluation of 70 percent for the Veteran’s PTSD. A review of the record shows that there were no pending, unadjudicated increased rating claims for PTSD prior to April 1, 2015. Thus, in light of the foregoing, the Board has determined that April 1, 2015, is the date of receipt of the claim for an increased rating for the Veteran’s PTSD. Next, the question is when was an increase in disability factually ascertainable. See Hazan v. Gober, 10 Vet. App. at 521. After a careful review of the evidence prior to April 1, 2015, the Board finds that an earlier effective date is not warranted for the award of the 70 percent disability rating for PTSD. VA treatment records from April 2014 to March 2015 show that the Veteran’s PTSD resulted in nightmares, chronic sleep impairment, anxiety, isolation, avoidant behavior, hypervigilance, suspiciousness, memory issues, and anger, irritability, and frustration. They also show that the Veteran was a minimal suicide risk, had no suicidal or homicidal ideations, and did not experience delusions, auditory hallucinations, or visual hallucinations. His PTSD was consistently found to be under fair control. The Veteran was very busy and stressed with his restaurant, which he owned and worked at part-time. He reported that he isolated himself in the kitchen and had his wife handle customers. He also stated that he worked at his restaurant as a way to cope with his PTSD. January and February 2015 VA treatment records show that the Veteran’s PTSD symptoms worsened due to anxiety about a surgical procedure. In a May 2015 VA examination, the VA examiner found that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-terms memory, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. Considering the above, the Board finds that the Veteran is not entitled to an effective date prior to April 1, 2015, for the award of a 70 percent evaluation for PTSD. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to that general rule; however, the evidence does not demonstrate that it was factually ascertainable that the Veteran’s service-connected PTSD was 70 percent disabling within one year prior to April 1, 2015. 38 C.F.R. § 3.400 (o)(2). In this case, the May 2015 VA examination is the first evidence of record supporting a 70 percent disability rating for PTSD. In fact, the record does not show any relevant evidence prior to April 1, 2015 that demonstrates that the Veteran’s PTSD warrants a disability rating in excess of 30 percent. Thus, an effective date earlier than April 1, 2015 is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and therefore, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but will not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran’s claim for an increased rating for his PTSD was received by VA in April 1, 2015. Under 38 C.F.R. § 3.400 (o)(2), the effective date in a claim for an increased rating will be one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Board has already considered whether the Veteran’s PTSD warrants a disability rating in excess of 30 percent from April 1, 2014 to March 30, 2015 and has found that it does not. Thus, the Board will now consider whether the Veteran is entitled to a disability rating in excess of 70 percent from April 1, 2015 for his PTSD. The Veteran’s PTSD is rated as 70 percent disabling from April 1, 2015 under 38 C.F.R. § 4.130, Diagnostic Code 9411. A General Rating formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran’s disability. Pursuant to this General Rating formula, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish/maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders (2017). A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Id. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2016); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. In a May 2015 VA examination, the VA examiner found that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-terms memory, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. The examiner noted that the Veteran’s overall functioning and decreased somewhat due to general stress related to his military experiences in Vietnam. The examiner also stated that the Veteran’s PTSD seemed to become increasingly troublesome and intrusive in his daily life and work. The Veteran reported that he felt that his tolerance for stress had decreased markedly and that he sometimes isolated himself for a period to regain his bearing and composure. He expressed that he continued to work for financial reasons and to reduce his thoughts of war experiences. However, it was noted that this had become increasingly ineffective as a coping strategy. The Veteran also reported memory issues, irritability, and loss of sleep. He stated that he did better when he was working and felt that this was good for him despite experiencing work- and family-related stress. The Veteran had a stable marriage and a good relationship with his children. According to VA treatment records from April 2015 to June 2016, the Veteran’s PTSD resulted in nightmares, sleep impairment, frustration, anxiety, feelings of guilt, moral injury, isolation, avoidant behavior, issues with short-term memory, trust issues, increased startle response, and intrusive thoughts and memories. The records also show that the Veteran denied suicidal or homicidal ideation, past suicide attempts, delusions, auditory hallucinations, and visual hallucinations. The Veteran reported that he continued working at his restaurant, even though it was becoming increasingly difficult, to stay active and to manage his PTSD. He stated that he felt safe and like he was “on top of things” in his kitchen, but that when he left the kitchen, he was often overwhelmed by the state of the world. Generally, it was noted that the Veteran was doing well. In a June 2015 VA treatment record, the Veteran stated that he preferred not to deal with the public, but that he could de-escalate an obnoxious patron. He also stated that he would withdraw to a utility room when he felt overwhelmed. In September 2015, the Veteran spoke about how he decided to tell his son and daughter about his combat experiences and PTSD, but that his children started treating him different, which was not what he wanted. He also stated that he preferred to avoid conflict and confrontation and to resolve conflicts peacefully. According to a January 2016 VA treatment record, the Veteran enjoyed quiet time and conversations with regular customers. In February 2016, the Veteran discussed how he enjoyed a recent trip to Las Vegas with his wife although he had difficulties handling crowds. In a May 2016 VA treatment record, the Veteran stated that he tried to stay active in the “Rochester music scene.” According to a January 2017 lay statement, the Veteran was “confined” to the back of the house and spent a majority of the time in the “back of the house” away from others in his office. He did not deal with stress well and disliked being around a lot of people. About once or twice a month, he would become so overwhelmed that he would go the back of the restaurant and sit behind an old cooler to decompress. Based on the foregoing, the Board finds that the evidence is against granting a disability rating higher than 70 percent for the Veteran’s PTSD. To warrant a higher 100 percent evaluation, the Veteran must present evidence that his mental health symptoms result in total occupational and social impairment. However, at no time during the appeal period did the Veteran demonstrate that his symptoms were of such frequency, severity, and duration consistent with a 100 percent evaluation. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name; or persistent danger of hurting himself or others. The Veteran maintained a relationship with his wife and children, and currently worked at his own restaurant. In fact, the record shows that the Veteran was able to enjoy a trip with his wife, converse with regular customers, and at least attempt to stay active in a music scene. As a result, a higher 100 percent rating is not warranted from April 1, 2015. The preponderance of the evidence is against the claim for a disability rating higher than 70 percent for the Veteran’s PTSD. The benefit-of-the-doubt doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran is seeking a TDIU based on his service-connected disabilities. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 415. A substantially gainful occupation has been defined “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16 (a). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that 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 such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. As an initial matter, the Board finds that the claim for a TDIU was raised by the record in a February 2017 VA Form 21-8940, which contends that the Veteran is unemployable due to, in part, his PTSD. The Board found that it had jurisdiction over the issue for a TDIU, because it was part and parcel of the increased rating claim on appeal that was initiated on April 1, 2015. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the relevant appeal period for the Veteran’s TDIU claim is from April 1, 2015. From April 1, 2015, the Veteran’s service-connected disabilities have a combined evaluation of 90 percent. At a 90 percent combined evaluation, the Veteran’s service-connected disabilities render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the schedular criteria have been satisfied. According to the Veteran’s February 2017 VA Form 21-8940, the Veteran contends that his service-connected PTSD, peripheral neuropathy, and diabetes mellitus prevent him from securing or following any substantially gainful occupation. He indicated that he was currently employed at Buffalo Bill’s and that he was unable to work three days a week due to his disabilities. The Veteran indicated that he completed high school and three years of college. VA treatment records from April 2015 to June 2016 show that the Veteran works part-time at a restaurant that he owns. A May 2015 VA examination for PTSD reflects that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran’s PTSD was becoming increasingly troublesome and intrusive into his daily life and work. However, the Veteran stated that he did better when he worked and that he felt that it was good for him although it was becoming increasingly ineffective as a coping strategy. In an August 2015 VA examination for diabetes mellitus, the examiner found no occupational impairment due to the Veteran’s diabetes mellitus, type II, or complications thereof. In an August 2015 VA examination for eye conditions, the examiner found no occupational impairment due to the Veteran’s diabetic retinopathy. In August 2015 VA examinations, the examiner found that the Veteran’s peripheral neuropathy prevented prolonged walking or walking on uneven surfaces. In an August 2016 VA examination for diabetes mellitus, the examiner found that complications from the Veteran’s diabetes mellitus would make working extremely difficult and an August 2016 VA examination for peripheral neuropathy, the examiner found that the Veteran’s peripheral neuropathy prevented prolonged standing. In an August 2016 VA examination for eye conditions, the examiner found no occupational impairment due to the Veteran’s diabetic retinopathy. Taking into consideration the totality of the evidence of record, the Board finds that the evidence does not demonstrate that the Veteran is precluded from securing or maintaining substantially gainful employment due to his service-connected disabilities. The Veteran is currently working part-time at his own restaurant, which is conceded in the Veteran’s February 2017 VA Form 21-8940. While the Board acknowledges that the Veteran’s service-connected disabilities result in some level of occupational impairment, the Board finds that the Veteran has not presented sufficient evidence that his service-connected disabilities are so debilitating as to preclude all forms of substantially gainful employment especially in light of his current employment. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for a TDIU. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, with diabetic retinopathy and status post amputation of the right distal second toe is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity is remanded. 3. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. 6. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetes mellitus, type II, with diabetic retinopathy and status post amputation of the right distal second toe is remanded. 7. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the right upper extremity is remanded. 8. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the left upper extremity is remanded. 9. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the right lower extremity is remanded. 10. Entitlement to an effective date earlier than September 8, 2014 for the initial grant of service connection for diabetic peripheral neuropathy of the left lower extremity is remanded. In an August 2015 rating decision, the RO granted service connection for diabetes mellitus, type II, with diabetic retinopathy and status post amputation of the right distal second toe, effective September 8, 2014, and peripheral neuropathy of the bilateral upper and lower extremities, effective September 8, 2014. In November 2015, the Veteran timely filed a notice of disagreement as to the assigned ratings and effective dates for his diabetes mellitus, type II, and bilateral upper and lower peripheral neuropathy. No statement of the case (SOC) on these appealed issues have been issued by the RO. Therefore, the appropriate Board action is to remand these issues for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative an SOC that addresses the issues of entitlement to increased ratings and earlier effective dates for the grant of service connection for diabetes mellitus, type II, and bilateral upper and lower peripheral neuropathy. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel