Citation Nr: 18156920 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-49 698 DATE: December 11, 2018 REMANDED Entitlement to service connection for right upper extremity diabetic peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity diabetic peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity diabetic peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity diabetic peripheral neuropathy is remanded. Entitlement to an increased rating greater than 30 percent for right shoulder total arthroplasty replacement (dominant) with well-healed scars is remanded. Entitlement to an initial rating greater than 30 percent for service-connected coronary artery disease, status post myocardial infarction and coronary artery bypass graft is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an extension of a temporary total disability rating for coronary artery disease, status post myocardial infarction and coronary artery bypass graft due to convalescence following surgery on April 25, 2014 is remanded. Entitlement to an extension of a temporary total disability rating for coronary artery disease, status post myocardial infarction and coronary artery bypass graft due to convalescence following surgery on April 25, 2014 is remanded. Entitlement to an initial compensable rating for service-connected residual scar status post evacuation hematoma (Pseudoaneurysm) right and left femoral arteries is remanded. Entitlement to an extension of a temporary total disability rating for right shoulder total arthroplasty replacement (dominant) with well healed scars due to convalescence following surgery on April 2, 2014 is remanded. Entitlement to an earlier effective date prior to April 2, 2014 for the grant of entitlement to special monthly compensation based on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 through September 1973. In a September 2016 rating decision, the Regional Office (RO) granted an increased rating of 30 percent for the Veteran’s service-connected coronary artery disease effective August 31, 2010, the date his initial claim for service connection was received. As noted below, the issue of entitlement to an increased rating for coronary artery disease has been continuously prosecuted since the initial November 2012 rating decision granting service-connection for the disability. Since the RO did not assign the maximum disability rating possible, this appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Following the September 2016 rating decision, the Veteran filed an October 2016 notice of disagreement appealing the evaluation and effective date of the increased rating for his coronary artery disease. As the issue of entitlement to an increased rating for coronary artery disease has been on appeal since the initial August 2010 claim, the October 2016 notice of disagreement is moot, and the RO is requested to discontinue its appellate process for this notice of disagreement. Initially, the Board notes that the issues of entitlement to an increased rating for coronary artery disease, entitlement to a temporary total disability rating for right shoulder surgery requiring convalescence, and entitlement to service connection for diabetic peripheral neuropathy of all four extremities have been appealed and continuously prosecuted since the November 2012 and February 2013 rating decisions. See October 2013 Notice of Disagreement. Although a January 2014 VA 21-0820 Report of General Information indicates the Veteran attempted to withdraw his appeals for an increased rating for coronary artery disease and entitlement to a temporary total disability rating for right shoulder surgery requiring convalescence, the appeals were never closed, the Veteran was issued notification letters regarding the appeals in July 2015, and the September and October 2015 Statements of the Case clearly indicate the appeals date back to the initial 2012 and 2013 rating decisions. The Veteran’s attorney asserted in her June 2018 appellate brief that a timely notice of disagreement had been submitted with regard to the claims of entitlement to an increased rating for coronary artery disease, entitlement to an increased rating for a right knee disability, entitlement to an increased rating for a right shoulder disability, entitlement to Dependents’ Educational Assistance benefits, entitlement to a TIDU, entitlement to a temporary total evaluation based on treatment of the Veteran’s right-shoulder disability, and entitlement to a temporary total evaluation based on treatment requiring convalescence of the Veteran’s coronary artery disease, which were denied in a January 2014 rating decision. However, the Board finds that the June 2014 statement explicitly limited the notice of disagreement to the sole issue of entitlement to a temporary total evaluation based on treatment requiring convalescence of the Veteran’s coronary artery disease. In June 2014, the Veteran’s attorney submitted a claim for service connection for open heart surgery and stated “if any of the issues that I present in this statement were considered in a decision in the past 12 months, please accept this document as my notice of disagreement.” As the only issue presented in the June 2014 statement was a request for service connection for open heart surgery, none of the other issues addressed in the January 2014 rating decision were appealed. Accordingly, the Board does not have jurisdiction over the issues entitlement to an increased rating for a right knee disability, entitlement to Dependents’ Educational Assistance benefits. In her June 2018 appellate brief, the attorney argued that the Veteran’s pseudoaneurysm should be service-connected as a complication of his coronary artery disease. The Veteran was granted service-connection for the residuals of his pseudoaneurysm in a September 2016 rating decision. A timely notice of disagreement was received in November 2016, and the Board has construed it as a disagreement with the rating assigned. Accordingly, the issue has been recharacterized as reflected on the title page. The Veteran’s attorney has also argued that his hypertension and erectile dysfunction should be rated as separate compensable evaluations because they represent “medical progression or worsening” of the Veteran’s coronary artery disease. In support of this contention, the Veteran’s attorney argues that the M21-1, Part III, Subpart iv, Chapter 4, Section A.4a requires that objective neurological abnormalities represent a complication of spinal disease, and, by analogy, conditions secondary to coronary artery disease should be rated as separate compensable complications instead of secondary disabilities. However, this argument by analogy is misinformed. Under 38 C.F.R. § 4.71a the General Rating Formula for Diseases and Injuries of the Spine Note (1) instructs that any associated objective neurologic abnormalities related to a service-connected spine disability should be evaluated separately under an appropriate diagnostic code. The M21-1 provisions explaining that neurologic abnormalities related to service-connected spine disabilities be rated as separate compensable complications merely instruct raters in the implementation of Note 1 under the General Rating Formula for Diseases and Injuries. No such note is included under 38 C.F.R. § 4.104 Diagnostic Code 7017, applying to coronary bypass surgery. Accordingly, Title 38 does not empower the Agency of Original Jurisdiction (AOJ) or the Board to separately evaluate hypertension or erectile dysfunction as a complication or progression of the Veteran’s service-connected coronary artery disease. The Board interprets the attorney’s June 2018 appellate brief as an informal claim for entitlement to service connection for hypertension and erectile dysfunction as secondary to the Veteran’s service-connected coronary artery disease. As the informal claims for service connection was received after March 24, 2015, they must be made on a formal application. See 79 Fed. Reg. at 57,663-64; see also 38 C.F.R. § 3.155 (2015). It does not appear the AOJ responded to this statement, and it is referred to the AOJ for appropriate action. 1. Entitlement to service connection for right upper extremity diabetic peripheral neuropathy is remanded. 2. Entitlement to service connection for left upper extremity diabetic peripheral neuropathy is remanded. 3. Entitlement to service connection for right lower extremity diabetic peripheral neuropathy is remanded. 4. Entitlement to service connection for left lower extremity diabetic peripheral neuropathy is remanded. The Veteran claims entitlement to service connection for diabetic peripheral neuropathy of all four extremities. He was afforded a VA examination to evaluate his claims in August 2016. The examiner reviewed the Veteran’s claims file, including an August 2016 EMG performed by a private physician, and opined that the Veteran did not have any signs or symptoms of diabetic peripheral neuropathy. The examiner also noted that the Veteran had never been diagnosed with diabetic peripheral neuropathy. A December 2015 private treatment record reflects the Veteran was diagnosed with diabetic peripheral neuropathy following a physical examination noting weakness in all four extremities. As there is conflicting evidence regarding whether the Veteran has a current diagnosis of diabetic peripheral neuropathy, he should be afforded a new VA examination. Additionally, the August 2016 private EMG performed by Dr. Gamez referenced by the August 2016 VA examiner is not included in the claims file. On remand, the RO should obtain the EMG report and associate it with the claims file. 5. Entitlement to an increased rating greater than 30 percent for right shoulder total arthroplasty replacement (dominant) with well-healed scars is remanded. The Veteran seeks an increased rating for his service-connected right shoulder total arthroplasty. He was last afforded a VA examination to evaluate his right shoulder disability in December 2013, and has since undergone shoulder surgery. As the record indicates the Veteran’s service-connected right shoulder total arthroplasty replacement has worsened since this last examination, he should be afforded a new examination to assess the current severity of his disability. 6. Entitlement to an initial rating greater than 30 percent for service-connected coronary artery disease, status post myocardial infarction and coronary artery bypass graft is remanded. The Veteran seeks an increased rating for his service-connected coronary artery disease, status post myocardial infarction and coronary artery bypass graft. He was last afforded a VA examination to evaluate his coronary artery disease in December 2013, and has since undergone heart surgery. As the record indicates the Veteran’s service-connected coronary artery disease, status post myocardial infarction and coronary artery bypass graft has worsened since this last examination, he should be afforded a new examination to assess the current severity of his disability.   7. Entitlement to a TDIU is remanded. The claims file reflects that the Veteran was awarded Social Security disability benefits based in part on his service-connected coronary artery disease. As those records are likely to contain relevant medical information regarding the Veteran’s claim for entitlement to a TDIU, they should be obtained and associated with the claims file. 8. Entitlement to an extension of a temporary total disability rating for coronary artery disease, status post myocardial infarction and coronary artery bypass graft due to convalescence following surgery on April 25, 2014 is remanded. An August 2014 rating decision granted a temporary total disability rating for coronary artery disease due to convalescence following surgery on April 25, 2014. The Veteran filed a timely October 2014 notice of disagreement expressing disagreement with the RO’s handling of that issue. The submission of an NOD confers the Board jurisdiction over these matters. When a veteran files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not provided a SOC on this claim, so a remand is required. The Veteran should understand that, after the RO issues an SOC, he must timely file a substantive appeal (e.g. VA Form 9) in order to perfect his appeal and permit a decision on the merits by the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). 9. Entitlement to an earlier effective date prior to April 25, 2014 for the grant of entitlement to special monthly compensation based on housebound status is remanded. An August 2014 rating decision granted special monthly compensation based on housebound status effective April 25, 2014 through August 1, 2014. The Veteran filed a timely October 2014 notice of disagreement expressing disagreement with the RO’s handling of that issue. The RO has not provided a SOC on this claim, so a remand is required. The Veteran must timely file a substantive appeal in order to perfect his appeal and permit a decision on the merits by the Board. See Id. 10. Entitlement to an initial compensable rating for service-connected residual scar status post evacuation hematoma (Pseudoaneurysm) right and left femoral arteries is remanded. A September 2016 rating decision granted entitlement to service connection for residual scar status post evacuation hematoma (Pseudoaneurysm) right and left femoral arteries. The Veteran filed a timely November 2016 notice of disagreement expressing disagreement with the RO’s handling of that issue. The RO has not provided a SOC on this claim, so a remand is required. The Veteran must timely file a substantive appeal in order to perfect his appeal and permit a decision on the merits by the Board. See Id. 11. Entitlement to an extension of a temporary total disability rating for right shoulder total arthroplasty replacement (dominant) with well healed scars due to convalescence following surgery on April 2, 2014 is remanded. An August 2016 rating decision granted entitlement to a temporary total disability rating for right shoulder total arthroplasty replacement with well healed scars due to convalescence following surgery on April 2, 2014. The Veteran filed a timely September 2016 notice of disagreement expressing disagreement with the RO’s handling of that issue. The RO has not provided a SOC on this claim, so a remand is required. The Veteran must timely file a substantive appeal in order to perfect his appeal and permit a decision on the merits by the Board. See Id. 12. Entitlement to an earlier effective date prior to April 2, 2014 for the grant of entitlement to special monthly compensation based on housebound status is remanded. An August 2016 rating decision granted special monthly compensation based on housebound status effective April 2, 2014. The Veteran filed a timely September 2016 notice of disagreement expressing disagreement with the RO’s handling of that issue. The RO has not provided a SOC on this claim, so a remand is required. The Veteran must timely file a substantive appeal in order to perfect his appeal and permit a decision on the merits by the Board. See Id. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. Obtain and associate with the claims file the August 2016 EMG conducted by Dr. Gamez. 3. A September 2004 Social Security record indicates that there may be outstanding and relevant Social Security Administration records. A remand is required to allow VA to request these records. 4. Ask the Veteran if he has continued to receive private treatment for his service-connected disabilities. If so, he should either complete a release authorizing VA to request such records or submit them to VA. If he does submit a release form, the RO should request the private records, making two requests if needed, and notifying him if any records are not obtained. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral upper and lower extremity peripheral neuropathy. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as secondary to the Veteran’s service-connected diabetes. The examiner must specifically discuss the Veteran’s December 2015 diagnosis of peripheral neuropathy, August 2016 EMG report suggesting possible neuropathy, and the VA examinations finding no evidence of peripheral neuropathy. If a prior diagnosis is no longer applicable, the examiner must explain why and reconcile any conflicting medical evidence of record. 6. Schedule the Veteran for an examination of the current severity of his right shoulder total arthroplasty replacement (dominant) with well healed scars. 7. Schedule the Veteran for an examination of the current severity of his coronary artery disease, status post myocardial infarction and coronary artery bypass graft. 8. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an extension of a temporary total disability rating for coronary artery disease, status post myocardial infarction and coronary artery bypass graft due to convalescence following surgery on April 25, 2014; entitlement to an extension of a temporary total disability rating for coronary artery disease, status post myocardial infarction and coronary artery bypass graft due to convalescence following surgery on April 25, 2014; entitlement to an initial compensable rating for service-connected residual scar status post evacuation hematoma (Pseudoaneurysm) right and left femoral arteries; entitlement to an extension of a temporary total disability rating for right shoulder total arthroplasty replacement (dominant) with well healed scars due to convalescence following surgery on April 2, 2014; and entitlement to an earlier effective date prior to April 2, 2014 for the grant of entitlement to special monthly compensation based on housebound status. 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. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel