Citation Nr: 21061780 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-38 586A DATE: October 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 22, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1968 to April 1970 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and September 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2018. In a March 2020 decision, the Board denied a rating in excess of 20 percent for diabetes mellitus, denied a rating in excess of 20 percent for left and right lower extremity peripheral neuropathy, and denied entitlement to a TDIU prior to November 22, 2011. The Veteran appealed the Board's March 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which in a May 2021 order, granted the parties' joint motions for remand (JMR), vacating the Board's March 2020 decision and remanding the claim for compliance with the terms of the JMR. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. 2. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. In the May 2021 joint motion for remand, the parties determined that the Board erred when it failed to provide an adequate statement of reasons and bases because it failed to accurately address relevant evidence including the Veteran's testimony that his physician recommended that he restrict his activities. The parties also determined that the Board failed to address whether it satisfied its duty to assist in obtaining the Veteran's VA medical records, specifically a record of an October 2015 EMG. Thus, the Board must remand this matter for compliance with the Court's May 2021 order granting the parties' joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 22, 2011 is remanded. As to entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), although the Director of Compensation Service has made a decision regarding entitlement to extraschedular TDIU prior to November 22, 2011, the Board finds that the claim must be remanded as it is inextricably intertwined with the pending increased rating claims and could cause the Veteran to meet the percentage thresholds for schedular TDIU prior to November 22, 2011. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, because of the development required due to the Court's order granting the parties's remand, it is unclear whether the Veteran's service-connected disabilities will satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a). Thus, a decision by the Board on the Veteran's TDIU claim would be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). The matters are REMANDED for the following action: 1. Obtain all outstanding medical records, and in particular, an October 2015 EMG report. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus and associated peripheral neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include any associated complications, such as peripheral neuropathy. The VA examiner must acknowledge and discuss the lay and medical evidence of record, including the Veteran's testimony that his physician recommended that he restrict his activities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.