Citation Nr: 21077068 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-02 803 DATE: December 28, 2021 ORDER The May 6, 2021, Board decision denying entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction is vacated. The May 6, 2021, Board decision denying entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction is vacated. The May 6, 2021, Board decision denying entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus is vacated. The May 6, 2021, Board decision denying entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus is vacated. The May 6, 2021, Board decision denying entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus is vacated. The May 6, 2021, Board decision denying entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is vacated. The May 6, 2021, Board decision denying entitlement to a total disability rating based on individual unemployability (TDIU) is vacated. REMANDED Entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction is remanded. Entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction is remanded. Entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus is remanded. Entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus is remanded. Entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus is remanded. Entitlement to a disability rating in excess of 50 percent for PTSD with depression is remanded. Entitlement to TDIU is remanded. FINDINGS OF FACT 1. In a decision dated May 6, 2021, and signed by the undersigned Veterans Law Judge, the Board denied entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction; entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction; entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus; entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus; entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus; entitlement to a disability rating in excess of 50 percent for PTSD with depression; and entitlement to TDIU. 2. At the time of the May 6, 2021, Board decision, the Department of Veterans Affairs (VA) was in constructive possession of VA treatment records regarding a hospitalization in May 2020 and psychiatric treatment in October 2020. 3. These treatment records were not available for review by the Board at the time it issued its May 6, 2021, decision and are relevant to the Veteran's claims. 4. The fact that the Board's prior decision was not based on all relevant evidence held by VA effectively denied the Veteran due process of law. CONCLUSIONS OF LAW 1. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction have been met. 38 U.S.C. §§ 5107, 7104(a) (2012); 38 C.F.R. § 20.1000 (2021). 2. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. 3. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. 4. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. 5. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. 6. The criteria for vacating the May 6, 2021, Board decision denying entitlement to a disability rating in excess of 50 percent for PTSD with depression have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. 7. The criteria for vacating the May 6, 2021, Board decision denying entitlement to TDIU have been met. 38 U.S.C. §§ 5107, 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 (denying increased ratings for diabetes mellitus and PTSD and denying TDIU), January 2014 (granting service connection for erectile dysfunction) and February 2019 (granting service connection for cataracts) rating decisions issued by a VA regional office (RO). In February 2017, the Veteran, his spouse, and his two sons testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In December 2017, the Board remanded the claims for further development. Vacatur 1. Whether the May 6, 2021, Board decision denying entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction should be vacated 2. Whether May 6, 2021, Board decision denying entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction should be vacated 3. Whether the May 6, 2021, Board decision denying entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus should be vacated 4. Whether the May 6, 2021, Board decision denying entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus should be vacated 5. Whether the May 6, 2021, Board decision denying entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus should be vacated 6. Whether the May 6, 2021, Board decision denying entitlement to a disability rating in excess of 50 percent for PTSD with depression should be vacated 7. Whether the May 6, 2021, Board decision denying entitlement to TDIU should be vacated The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. In the decision dated May 6, 2021, and signed by the undersigned Veterans Law Judge, the Board denied entitlement to a disability rating in excess of 10 percent from April 21, 2010, to May 25, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction; entitlement to a disability rating in excess of 20 percent from May 26, 2011, for diabetes mellitus with left eye retinopathy, cataracts, and erectile dysfunction; entitlement to a separate compensable rating for left eye retinopathy as secondary to diabetes mellitus; entitlement to a separate compensable rating for cataracts as secondary to diabetes mellitus; entitlement to a separate compensable rating for erectile dysfunction as secondary to diabetes mellitus; entitlement to a disability rating in excess of 50 percent for PTSD; and entitlement to TDIU. At the time of the May 6, 2021, Board decision, VA was in constructive possession of VA treatment records regarding a hospitalization in May 2020 and psychiatric treatment in October 2020. These treatment records were not available for review by the Board at the time it issued its May 6, 2021, decision and are relevant to the Veteran's claims. The fact that the Board's prior decision was not based on all relevant evidence held by VA effectively denied the Veteran due process of law. Accordingly, the May 6, 2021, Board decision denying the six increased rating claims and the TDIU must be vacated to resolve this error of due process. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. See 38 C.F.R. § 20.904 (a)(3). Granting vacatur results in the nullification of a previous Board decision as to the specific claims, but does not, in and of itself, comprise a new Board decision on the merits of the original claims. See Harms v. Nicholson, 489 F.3d 1377, 1379 (Fed. Cir. 2007). Rather, the Board will reconsider the Veteran's claims as if the May 6, 2021, Board decision denying the six increased rating claims and the claim of entitlement to TDIU had never been issued. See 38 C.F.R. § 20.904(a)(3). REASONS FOR REMAND VA treatment records reveal that the Veteran identified his spouse as a protective factor regarding suicidal ideation. The Veteran was last examined for his PTSD in March 2018, and his spouse died in 2019. Given the passage of time and possible worsening, another VA examination is necessary. In an August 2021 statement, the Veteran's counsel reported that the Veteran had undergone cataract surgery in 2020 and 2021. The Veteran was last examined for his cataracts in March 2018. Given the passage of time and possible worsening, another VA examination is necessary. VA treatment records reveal a diagnosis of diabetic neuropathy. A VA peripheral nerves examination is necessary as well as another VA diabetes mellitus examination. The RO should obtain any additional treatment records from the New Mexico VA Health Care System from February 2019 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment records for his psychiatric disorder, diabetes mellitus, eye disabilities, erectile dysfunction, any peripheral neuropathy, and any other disability pertaining to his claim for TDIU. Obtain any identified records. Obtain the Veteran's VA treatment records from the New Mexico VA Health Care System from February 2019 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 3. After the development in 1 is completed, schedule the Veteran for a peripheral nerves examination by an appropriate clinician to determine the existence and current severity of any diabetic peripheral neuropathy. The examiner should provide a full description of any diabetic peripheral neuropathy and report all signs and symptoms necessary for evaluating that disability under the rating criteria. 4. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cataracts and left eye retinopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 5. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with depression. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD with depression alone. 6. After the development in 1 is completed, the RO should undertake any necessary development on the TDIU claim and the claim for a separate compensable rating for erectile dysfunction as warranted by any additional evidence of record. 7. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.