Citation Nr: 1807177 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-15 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to May 12, 2015, and to a rating in excess of 20 percent since May 12, 2015, for service-connected diabetes mellitus, type II. 2. Entitlement to a rating in excess of 10 percent prior to April 14, 2016, and to a rating in excess of 20 percent since April 14, 2016, for service-connected peripheral neuropathy of the left upper extremity (non-dominant) associated with diabetes mellitus, type II. 3. Entitlement to a rating in excess of 10 percent prior to April 14, 2016, and to a rating in excess of 20 percent since April 14, 2016, for service-connected peripheral neuropathy of the right upper extremity (dominant) associated with diabetes mellitus, type II. 4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II. 5. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II. 6. Entitlement to a total disability rating based on individual unemployability (TDIU), beginning on March 29, 2010 and ending February 16, 2012, to include on an extraschedular basis. 7. Entitlement to service connection for a kidney disability, to include as secondary to service-connected diabetes mellitus, type II. 8. Entitlement to service connection for a bladder disability, to include as secondary to service-connected diabetes mellitus, type II. 9. Entitlement to service connection for a reflux disability, to include as secondary to service-connected diabetes mellitus, type II. 10. Entitlement to service connection for a disability of the esophagus, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. (The issue of entitlement to service connection for hypertension, to include as secondary to herbicide exposure, will be the subject of a later decision.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further evidentiary development is required prior to reviewing the issues on appeal. Missing Procedural Records- With respect to all claims, the Board notes that the Veteran's notice of disagreement, statement of the case and substantive appeal relating to all issues on appeal have been misplaced. Such was noted on the VA Form 8 issued on February 13, 2017. On remand the AOJ must ensure that all documents included in the Veteran's paper file are returned to the Board in either a paper or electronic format. Increased Ratings- The Veteran was last afforded VA examinations of his peripheral neuropathy of the upper and lower bilateral extremities and diabetes mellitus in April 2016. The evidence of record indicates that his disabilities may have worsened since his last VA examinations. See January 2018 Appellant's Brief. The Board finds that he should be afforded new examinations evaluating his diabetes mellitus and peripheral neuropathy of the bilateral upper and lower extremities in order to determine the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Kidney, Bladder, Reflux, and Esophagus Disabilities- The Veteran asserts that he has a kidney disability, bladder disability, reflux disability and disability of the esophagus all related to service. He additionally asserts that these disabilities are secondary to his service-connected diabetes mellitus, type II. The Veteran was afforded an August 2010 VA examination with respect to these disabilities. Although the VA examiner concluded that the Veteran's claimed disabilities were not secondary to his service-connected diabetes mellitus, type II, the examiner did not discuss whether the Veteran's service-connected diabetes mellitus, type II, aggravated (worsened) his claimed disabilities. 38 C.F.R. § 3.310(b). The Board finds that this examination is not adequate and additional VA examinations and medical opinions should be obtained on remand. TDIU- The Board notes that the Veteran's claim for entitlement to TDIU, beginning on March 29, 2010 and ending February 16, 2012, is inextricably intertwined with his remanded claims. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). While on remand, any additional VA and private treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure that the Veteran's notice of disagreement, statement of the case and substantive appeal pertaining to the claims on appeal are added to the Veteran's claims file. 2. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who have treated the Veteran for his claimed disabilities. After securing any necessary authorization from him, obtain all identified treatment records. In order to expedite the case, the Veteran may wish to submit all of these records to the AOJ to avoid delay. 3. Schedule the Veteran for VA examinations to determine the nature and severity of his service-connected diabetes mellitus and peripheral neuropathy of the bilateral upper and lower extremities. [Please note his ratings for the Anterior Crural Nerve (Femoral)-bilateral lower extremities are not on appeal]. The Veteran's claims file should be provided to the examiner. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his kidney disability, bladder disability, reflux disability and disability of the esophagus and their relationship, if any, to his military service. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. (a) Kidney Disability- The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that his kidney disability had its clinical onset during the Veteran's active duty service or is otherwise etiologically related to his active service. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's kidney disability is caused by his service-connected diabetes mellitus, type II. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's kidney disability is aggravated by his service-connected diabetes mellitus, type II. (b) Bladder Disability- The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that his bladder disability had its clinical onset during the Veteran's active duty service or is otherwise etiologically related to his active service. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bladder disability is caused by his service-connected diabetes mellitus, type II. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bladder disability is aggravated by his service-connected diabetes mellitus, type II. (c) Reflux Disability- The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that his reflux disability had its clinical onset during the Veteran's active duty service or is otherwise etiologically related to his active service. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's reflux disability is caused by his service-connected diabetes mellitus, type II. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's reflux disability is aggravated by his service-connected diabetes mellitus, type II. (d) Esophageal Disability- The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that his esophageal disability had its clinical onset during the Veteran's active duty service or is otherwise etiologically related to his active service. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's esophageal disability is caused by his service-connected diabetes mellitus, type II. The VA examiner is also asked to provide an opinion as to: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's esophageal disability is aggravated by his service-connected diabetes mellitus, type II. 4. After completing the above, and any other development deemed necessary, readjudicate the issues currently on appeal with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).