Citation Nr: 20007783 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-27 429A DATE: January 30, 2020 ORDER Entitlement to service connection for left lower extremity peripheral neuropathy, secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for left upper extremity peripheral neuropathy, secondary to service-connected diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a disability rating in excess of 50 percent prior to June 24, 2016, and in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left lower extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. 2. The Veteran’s left upper extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity peripheral neuropathy as secondary to service-connected diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for left upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. He testified at a videoconference hearing before the undersigned in April 2019. A copy of the transcript is of record. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. The Board finds that the claim for a TDIU has been reasonably raised by the record. Therefore, the Board has jurisdiction over this issue as part and parcel of the Veteran’s claim for a higher rating for PTSD and has listed the issue on the title page. 1. Entitlement to service connection for left lower extremity peripheral neuropathy, secondary to service-connected diabetes mellitus, type II. The Veteran asserts that he has left lower extremity peripheral neuropathy that is due to his service-connected diabetes mellitus, type II. The Veteran has been diagnosed with left lower extremity diabetic peripheral neuropathy. See October 2015 Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire. The September 2018 VA examiner also opined that it is at least as likely as not that the Veteran’s left lower extremity diabetic peripheral neuropathy is proximately due to or the result of his service-connected diabetes mellitus, type II. Accordingly, the Board finds that service connection for left lower extremity diabetic peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for left upper extremity peripheral neuropathy, secondary to service-connected diabetes mellitus, type II. The Veteran asserts that he has left upper extremity peripheral neuropathy that is due to his service-connected diabetes mellitus, type II. The Veteran underwent VA examination in September 2018. Upon examination, mild numbness of the left upper extremity attributable to diabetic peripheral neuropathy was indicated. Pinch testing indicated less than normal strength in the left upper extremity. The examiner found that the Veteran had left upper extremity diabetic peripheral neuropathy with mild incomplete paralysis of the median nerve. Additionally, EMG study results were abnormal for the left upper extremity with the examiner noting axonal sensory-motor polyneuropathy and median neuropathy of the bilateral wrists. The examiner stated that the Veteran’s neuropathy was complicated by the fact that it was multicausal. Although the examiner opined that it was more likely than not that the Veteran’s tingling of the fingers in the left upper extremity was related to carpal tunnel system, she did diagnosis the Veteran with diabetic peripheral neuropathy of the left upper extremity that manifested as mild numbness. Accordingly, the presence of the disability claimed is established, as well as its relationship to service-connected diabetes. Service connection for left upper extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to a disability rating in excess of 50 percent prior to June 24, 2016, and in excess of 70 percent thereafter, for service-connected PTSD is remanded. 4. Entitlement to a TDIU is remanded. After issuance of the August 2017 Supplemental Statement of the Case (SSOC), relevant VA treatment records dated though December 2019, as well as three relevant September 2018 VA examinations were associated with the claims file. Any pertinent evidence submitted by a claimant or his representative (or in this case added to the file by VA) after an appeal is certified to the Board must be referred to the agency of original jurisdiction (AOJ), unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c); see Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied “one review on appeal to the Secretary” when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant’s waiver). No waiver has been submitted, and the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply. In December 2019, the Board sent the Veteran correspondence asking whether he would like to have his claims remanded to the AOJ for review of this evidence in the first instance, or whether he wished to waive AOJ review. In January 2020, the Veteran responded and specifically requested that his claims be remanded to the AOJ for review of the new evidence. Thus, a remand is required so that an SSOC may be issued. The matters are REMANDED for the following action: Readjudicate the issues remaining on appeal, after review of all evidence of record. If the benefits sought remain denied, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.