Citation Nr: 21065793
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 18-02 384
DATE: October 27, 2021

REMANDED

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had periods of active service, including one from May 1987 to September 2001 and another from December 2001 to December 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision.  In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file.  In January 2021, the Board remanded this appeal for further evidentiary development.

Entitlement to a TDIU

Unfortunately, the medical evidence of record is not adequate to guide the Board in adjudicating this claim.  Although this appeal involves a claim for a TDIU, the relevant medical evidence simply includes a recent opinion regarding whether the Veteran's bilateral lower extremity nerve condition represent complications of his diabetes.  In this regard, the evidence is unclear.  The June 2021 diabetic sensory-motor peripheral neuropathy Compensation and Pension (C&P) examination report itself indicates that the Veteran carries a diagnosis of bilateral lower extremity diabetic neuropathy.  However, the resulting opinion appears to contradict that stated diagnosis, referring more generally to the Veteran's "bilateral lower extremity nerve conditions" and indicating that his lower extremity neuropathy was diagnosed years prior to his diabetes diagnosis.  Thus, the Board requires clarification as to how the Veteran could have a diagnosis of diabetic peripheral neuropathy that was not related to his diabetes.  

Also, several EMG studies (including studies dated June 2010 and November 2012) from the period immediately preceding the Veteran's diabetes diagnosis indicate that he did not have peripheral neuropathy in the period preceding his initial diagnosis with diabetes around May 2013.  Consequently, the Board requires an additional opinion responding to this evidence.

Accordingly, this matter is REMANDED for the following actions:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral lower extremity peripheral neuropathy diagnosed as peripheral neuropathy in the June 2021 C&P examination report was at least as likely as not related to his service-connected diabetes.  In this regard, the examiner's attention is directed to the Veteran's EMG reports from the period preceding the Veteran's diabetes diagnosis in 2013 discussing his various peripheral nerve conditions.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.  

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  His failure to report for a scheduled VA medical examination may impact the determination made.  38 C.F.R. § 3.655.  The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This appeal must be afforded prompt treatment. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Steven H. Johnston, 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.