Citation Nr: 21006946 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-34 363 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating in excess of 40 percent prior to May 13, 2011, and a rating in excess of 20 percent thereafter, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 30 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities for the period prior to September 25, 2009, is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction is remanded. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine with intervertebral disc syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1966 to May 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2007 and October 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board last remanded the claims for increased ratings for peripheral neuropathy and TDIU to the RO for further development. As an initial matter, in the May 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran entitlement to a TDIU from September 25, 2009, the date of the first day following the last day that the AOJ determined the Veteran stopped working full time. However, as entitlement to a TDIU arose during the pendency of the Veteran’s increased diabetes mellitus and low back rating claims, discussed below, the issue of entitlement to a TDIU prior to September 25, 2009, remains before the Board under Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to increased ratings for peripheral neuropathy of the right and left lower and upper extremities and entitlement to a TDIU prior to September 25, 2009 A remand is necessary for the AOJ to issue a Supplemental Statement of the Case (SSOC), which considers additional VA records added to the Veteran’s claims file since the issuance of the last SSOC. In this regard, since issuance of the last SSOC in May 2020, additional VA medical records and examinations, relevant to the issues on appeal, have been associated with the Veteran’s claims file. Specifically, in September 2020 and November 2020, respectively, the Veteran underwent diabetes mellitus, cervical spine, and back VA examinations, which addressed the Veteran’s radiculopathy and neuropathy. These records were received after the transfer of the Veteran’s claims file to the Board. The Board notes that the Veteran is entitled to an initial review of these records by the AOJ, unless he waives such review. 38 C.F.R. §§ 19.37(b), 20.1304(c). As such, in December 2020, a notification letter was sent to the Veteran and his representative informing the Veteran that he had the option to waive AOJ review of the evidence and have the Board adjudicate his appeal. The notification letter also indicated that if the Veteran did not respond within 45 days of the letter that he wished to waive AOJ review of the evidence, the appeal would be remanded to the AOJ for initial consideration of the newly associated evidence. Neither the Veteran nor his representative responded within 45 days of the date of the letter and to date, no reply to this notification letter has been received by the Board from the Veteran or his representative. Thus, the Board must remand the claims for the AOJ to issue a SSOC. Additionally, in the January 2018 remand, the Board directed the AOJ to readjudicate the claims based on the entirety of the evidence and to issue an SSOC if the claims remain denied. The AOJ has not yet adjudicated the issue of entitlement to a TDIU for the period prior to September 25, 2009, following the January 2018 Board remand, and did not include this issue in the May 2020 SSOC. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the AOJ should also issue an SSOC with regard to this claim. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction and entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine with intervertebral disc syndrome Upon review of the record, the Board finds that outstanding increased rating claims for the Veteran’s diabetes mellitus and low back disability are also currently on appeal. By way of background, a September 2009 SOC denied the Veteran’s claims for a rating in excess of 20 percent for diabetes mellitus and a rating in excess of 40 percent for a low back disability. The Veteran timely appealed this decision in an October 2009 Form 9 and indicated that he was appealing all the issues listed on the SOC. Thereafter, in a February 2011 Statement in Support of Claim, the Veteran asserted that he was requesting to withdraw his appeal as to the issues of increased ratings for his left and right lower and upper extremity peripheral neuropathy as secondary to his service-connected diabetes and lower back. In a subsequent October 2011 letter, VA notified the Veteran that his February 2011 request to withdraw his peripheral neuropathy claims had been received and that the AOJ would take no further action on the claim. See October 2011 notification letter. The Board notes that the Veteran did not withdraw his increased rating claims for his diabetes mellitus and low back disability, nor did he receive any notification that further action would stop with claims. Therefore, as the Veteran filed a timely substantive appeal for increased ratings for diabetes mellitus and his low back disability and the Board has not previously addressed these issues, his claims have remained pending and are currently before the Board in this decision. Since the September 2009 SOC, additional pertinent VA examinations and medical records have been associated with the claims file. However, the AOJ has not yet issued an SSOC addressing this additional evidence, which was associated with the record prior to and after transfer of the case to the Board for appellate consideration. If evidence is received after the SOC but prior to transfer of the case to the Board, the case must be remanded for a SSOC pursuant to 38 C.F.R. §§ 19.31, 19.37(a). As such, a remand is also required for the AOJ to issue an SSOC to cure this procedural defect. The matters are REMANDED for the following action: 1. After undertaking any needed development, to include obtaining and associating with the record any further outstanding VA treatment records, readjudicate the issues of entitlement to increased ratings for right and left lower and upper extremity peripheral neuropathy, diabetes mellitus, type II, with erectile dysfunction, degenerative arthritis of the spine with intervertebral disc syndrome, and entitlement to a TDIU for the period prior to September 25, 2009. If any benefit sought remains denied, issue a SSOC and allow the Veteran and his representative an appropriate period of time to respond. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.