Citation Nr: 18151602 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-23 331 DATE: November 19, 2018 ORDER Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II is dismissed. Entitlement to an increased rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is dismissed. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is dismissed. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 30 percent peripheral neuropathy of the left upper extremity is remanded. Entitlement to an earlier effective date for peripheral neuropathy of the left upper extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran withdrew his appeal in July 2015 as to increased ratings for the service-connected diabetes, bilateral peripheral neuropathy of the lower extremities, and right peripheral neuropathy of the upper extremity. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met as to the claims for an increased rating for diabetes, bilateral peripheral neuropathy of the lower extremities, and right peripheral neuropathy of the upper extremity. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to June 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of April 2014 and January 2015 rating decisions of the Sioux Falls, South Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). Withdrawn Claims By July 2015 written statement the Veteran stated he withdraws the claims for an increased rating for diabetes, bilateral peripheral neuropathy of the lower extremities, and right peripheral neuropathy of the upper extremity. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal as to claims for an increased rating for diabetes, bilateral peripheral neuropathy of the lower extremities, and right peripheral neuropathy of the upper extremity, and, hence, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with regard to the stated claims and they are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to a rating in excess of 30 percent peripheral neuropathy of the left upper extremity is remanded. 3. Entitlement to an earlier effective date for peripheral neuropathy of the left upper extremity is remanded. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The Veteran last appeared for a VA examination in regard to PTSD and peripheral neuropathy of the left upper extremity in January 2015 and April 2015, respectively. The Veteran’s statements by appellate brief dated May 2016 and February 2018 indicate worsening of both disabilities. The Court has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As well, VA’s duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). In regard to TDIU, an examiner is requested to enter an opinion regarding the functional impairment of the Veteran’s multiple service-connected disabilities. Entitlement to an earlier effective date for left, upper extremity peripheral neuropathy is inextricably intertwined with remanded claims on appeal and adjudication on this issue is so deferred. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination of the current severity of his service-connected PTSD. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected psychiatric disability alone and discuss the effect of the Veteran’s psychiatric disability on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination of the current severity of his service-connected peripheral neuropathy of the left upper extremity. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected peripheral neuropathy of the left upper extremity disability alone and discuss the effect of the Veteran’s peripheral neuropathy of the left upper extremity disability on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his service-connected disabilities, in addition to those examinations outlined above for PTSD and peripheral neuropathy of the left, upper extremity. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of the disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected disabilities. After the above is complete, readjudicate the Veteran’s claims, to include for an earlier effective date of peripheral neuropathy of the left upper extremity. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev