Citation Nr: 21069528 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-50 152 DATE: November 18, 2021 ORDER Entitlement to an effective date earlier than March 12, 2010, for the award of service connection for type II diabetes is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for type II diabetes is remanded. Entitlement to an initial rating in excess of 10 percent prior to November 9, 2019, and 20 percent thereafter for left lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent prior to November 9, 2019, and 20 percent thereafter for right lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent prior to November 9, 2019, and 30 percent thereafter for left upper extremity peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 6, 2014, is remanded. FINDING OF FACT The Veteran initially filed a service connection claim for type II diabetes on March 12, 2010. Service connection was awarded effective from that date. CONCLUSION OF LAW The criteria for an effective date earlier than March 12, 2010, for the award of service connection for type II diabetes have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2014, July 2015, and March 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal have followed intricate and separate procedural paths. As such, the Board will discuss the relevant procedural history for each group of issues below. Motion to Withdraw Representation The Veteran's representative filed a motion to withdraw representation in September 2021. As to motions to withdraw representation, the regulations provide that 38 C.F.R. § 14.631(c) applies unless § 20.6 governs the withdrawal. Section 20.6 applies here because the attorney had previously agreed to act as representative in an appeal and an appeal to the Board has been certified. See 38 C.F.R. § 20.6(a)(1), (2). A representative may not withdraw representation without good cause shown on motion, accompanied by a "signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which a copy was mailed." See 38 C.F.R. § 20.6(a)(2). Good cause for such purposes includes the extended illness or incapacitation of the representative, failure of the appellant to cooperate with proper preparation and presentation of the appeal, or other factors which make the continuation of representation impossible, impractical, or unethical. Id. However, such motions should not contain information which would violate privileged communications, or which would otherwise be unethical to reveal. Id. Upon the Board's receipt of the motion, the Veteran may file a response within 30 days, which must be accompanied by a "signed statement certifying that a copy of the response was sent by first-class mail, postage prepaid, to the representative, setting forth the address to which a copy was mailed." Id. In his motion, the representative moved for withdrawal due to "factors which make the continuation of representation impossible, impractical, or unethical." See September 2021 Motion to Withdraw. The representative explained the disclosure of such factors would be "unethical." Id. Thus, the Board finds that the representative has attested to good cause for withdrawal of representation. Included with the motion was a signed certificate of service attesting to service upon the Veteran by first-class mail, postage prepaid, to the Veteran's address on September 27, 2021. Id. The Board received a physical copy of such motion on October 6, 2021. Though a return receipt showing that the Veteran received a copy of the motion is not of record, the requirement for the same is not procedurally necessary under the regulations. Thus, providing the broadest interpretation, the Veteran had until 30 days after October 6, 2021, to respond to the motion. As 30 days have elapsed and no response has been filed, the Board will proceed with adjudication of the motion to withdraw representation. The Board finds that the representative has met all procedural requirements necessary to request withdrawal of representation as required in § 20.6. Moreover, the Veteran has not elected to respond to the representative's motion within 30 days of receipt. As the Veteran has not appointed new representation, the Board will proceed with the Veteran pro se. 1. Entitlement to an effective date earlier than March 12, 2010, for the award of service connection for type II diabetes is denied. Procedural History Preliminarily, the Board provides a brief procedural summary related to the claim for entitlement to an earlier effective date for the award of service connection for diabetes. The agency of original jurisdiction (AOJ) granted service connection for diabetes in a March 2013 rating decision awarding service connection for diabetes effective in February 2013. The claim for entitlement to an earlier effective date comes before the Board from a March 2017 rating decision, which found clear and unmistakable error (CUE) in the March 2013 rating decision. The March 2017 rating decision assigned an earlier effective date of March 12, 2010, for the award of service connection with an initial rating of 20 percent. The Board previously adjudicated this issue in a December 2020 decision (Docket no. 20-04 212). Thereafter, in April 2021, the Board vacated this decision as it was erroneously issued prior to completion of an administrative merger. See April 2021 Board decision. The Board has not yet adjudicated this issue and, thus, it remains before the Board. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The Board notes that effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). VA received the Veteran's original claim for service connection for diabetes on March 12, 2010. Prior to March 12, 2010, the Veteran had not filed a service connection claim for diabetes. VA first received the Veteran's claim for entitlement to service connection for diabetes on March 12, 2010. The Board has reviewed the remainder of the record and finds no instance where the Veteran or his representative submitted a statement which might be construed as a formal or informal claim for service connection for diabetes. 38 C.F.R. § 3.155(a). Without an earlier received claim, the Board concludes that an earlier effective date for diabetes is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for type II diabetes is remanded. Procedural History Preliminarily, the Board provides a brief procedural summary related to the claim for an initial rating in excess of 20 percent for type II diabetes. As noted above, the AOJ granted service connection for diabetes in a March 2013 rating decision awarding service connection for diabetes. The Veteran initiated, but did not perfect, an appeal as to the rating assigned. The claim for an initial rating in excess of 20 percent comes before the Board from a March 2017 rating decision, which found CUE in the March 2013 rating decision. The March 2017 rating decision assigned an earlier effective date of March 12, 2010, for the award of service connection with an initial rating of 20 percent. The Veteran filed a notice of disagreement (NOD) in September 2018. The AOJ did not issue a statement of the case (SOC) as to the Veteran's claim for an increased rating. In a December 2020 decision (Docket no. 20-04 212), the Board remanded the claim for the AOJ to issue an SOC. The AOJ subsequently issued the SOC in December 2020 to which the Veteran perfected his appeal in January 2021. In January 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. Specifically, the Board remanded to afford the Veteran a new VA examination that addresses whether the Veteran has had to regulate his activities since March 12, 2010, any other complications associated with his diabetes, and the current severity of his diabetes. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Board remanded the Veteran's claim to determine whether there were any other complications associated with his diabetes. Specifically, the Board noted that the Veteran has alleged trouble with peripheral neuropathy, eyesight, and frequent urination due to his diabetes. See December 2020 Veteran's correspondence. VA treatment records indicate that a test for diabetic retinopathy was inconclusive. See August 2021 VA treatment records. The Veteran was last afforded a VA examination for his diabetes in January 2021. The examiner noted that they were unable to perform an in-person examination due to restrictions brought on by the pandemic. See January 2021 VA examination report and March 2021 addendum. An additional note stated that another examination would be scheduled when appropriate. Id. No subsequent examination is of record. Nevertheless, the examination report found that the Veteran had no other complications outside of peripheral neuropathy, which the examiner could not assess without an in-person examination. Id. The examiner's opinion was based on a review of the available records but did not discuss the Veteran's allegations that he had troubles with eyesight and frequent urination caused by his diabetes. Ignoring these allegations where an in-person examination is frustrated and, instead, relying on an absence of contemporaneous medical records is insufficient without adequate explanation. The Board finds that the January 2021 examination report is inadequate for adjudicative purposes. Moreover, the examination is not substantially compliant as it did not address the current severity of the Veteran's diabetes at all. Thus, remand is necessary for a new examination. 2. Entitlement to an initial rating in excess of 10 percent prior to November 9, 2019, and 20 percent thereafter for left lower extremity peripheral neuropathy is remanded. 3. Entitlement to an initial rating in excess of 10 percent prior to November 9, 2019, and 20 percent thereafter for right lower extremity peripheral neuropathy is remanded. 4. Entitlement to an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. 5. Entitlement to an initial rating in excess of 20 percent prior to November 9, 2019, and 30 percent thereafter for left upper extremity peripheral neuropathy is remanded. Procedural History Preliminarily, the Board provides a brief procedural summary related to the claims for increased ratings for the bilateral lower and upper extremities. The claims for increased ratings come before the Board from a July 2015 rating decision by the AOJ that granted service connection for peripheral neuropathy of the bilateral upper and lower extremities, assigning 20 percent ratings for the bilateral upper extremities and 10 percent ratings for the bilateral lower extremities. An April 2020 rating decision assigned a 30 percent rating for the left upper extremity and 20 percent ratings for the bilateral lower extremity from November 9, 2019. As relevant to this appeal, the Board notes that two Board decisions were issued on December 9, 2020, each addressing the same claims from the July 2015 rating decision. One decision was issued under Docket No. 20-04 212, while the other decision was issued under Docket No. 18-50 152. An April 2021 Board decision vacated the decision under Docket No. 20-04 212 as it was erroneously issued prior to completion of an administrative merger. A September 2021 Board decision vacated the decision under Docket No. 18-50 152 due to a denial of due process from an unaddressed motion for extension. Thus, these four claims remain unadjudicated. Unfortunately, the Board must remand these claims as inextricably intertwined with the claim for an initial rating in excess of 20 percent for type II diabetes. An examination as to the Veteran's diabetes, to include related complications, could impact the decision on these claims. As such, the claims are intertwined. 6. Entitlement to a TDIU rating prior to January 6, 2014, is remanded. In Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when the record raises such claim. The Veteran stated his service-connected disabilities contribute to his ability to work. See December 2020 VA Form 21-8940; see also December 2020 Veteran's correspondence. As a decision on the remanded claims above could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his diabetes, peripheral neuropathy, and any other complication of diabetes that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above has been completed, schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected diabetes and related 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(ies) under the rating criteria. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: A. Has the Veteran had to regulate his activities at any point due to his diabetes since March 12, 2010? B. What, if any, other complications due to his diabetes does the Veteran have other than his peripheral neuropathies? The nature and severity of any complication should be described in detail. The examiner is to discuss the Veteran's alleged issues with eyesight and frequent urination. See December 2020 correspondence. The examiner should consider the VA treatment records that indicate that a test for diabetic retinopathy was inconclusive. See August 2021 VA treatment records. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.