Citation Nr: 21008392 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-19 571 DATE: February 16, 2021 REMANDED The issue of entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling, is remanded. The issues of entitlement to an increased rating for peripheral neuropathy of the bilateral lower extremities, currently each rated as 10 percent disabling, is remanded. The issue of entitlement to separate ratings for peripheral neuropathy of the bilateral upper extremities secondary to diabetes mellitus prior to June 16, 2017, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to diabetes mellitus and peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to January 1969. This matter is before the Board following his appeal of an April 2014 rating decision. As an introductory matter, the Board is cognizant that, following issuance of a statement of the case in April 2020, the Veteran failed to perfect an appeal regarding the effective dates assigned for separate ratings for peripheral neuropathy of the bilateral upper extremities. Nevertheless, entitlement to an effective date earlier than June 16, 2017, for the grants of neuropathy of the upper extremities is considered part and parcel of the Veteran’s diabetes mellitus increased rating appeal, as the rating criteria for the diabetes mellitus require consideration of separately compensable complications of diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Similarly, the Board is aware that a TDIU due to the Veteran’s combined service-connected disabilities was granted, effective September 23, 2013, and that the Board issued a May 2020 decision denying entitlement to an earlier effective date for the TDIU award. Nevertheless, as the Veteran has raised the issue of entitlement to a TDIU due solely to his diabetes and its complications, that issue remains before the Board as part of the Veteran’s diabetes increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”). As a final introductory matter, the Board notes that in a January 2018 statement and Notice of Disagreement (NOD), the Veteran disagreed with the ratings and effective dates assigned for the grants of service connection for peripheral vascular disease (PVD) of the lower extremities in a January 2017 rating decision. However, following the issuance of a subsequent rating decision in October 2017 awarding a partial increase for the left lower extremity PVD and denying a higher rating for the right lower extremity PVD, the Veteran submitted another NOD in October 2018 that did not express disagreement with the ratings or effective dates assigned for PVD of either extremity. In fact, in an accompanying cover letter to the NOD, the Veteran’s attorney acknowledged the peripheral PVD determinations and, for each lower extremity, specified that the Veteran “does not appeal.” As such, the Board finds that the October 2018 statement from the Veteran’s attorney constitutes an expression of satisfaction with the ratings and effective dates assigned for PVD of the lower extremities. Turning now to the merits of the current appeal, unfortunately, the Board finds that further remand is necessary. The Board previously remanded this appeal in January 2019 to obtain examinations regarding the current severity of the Veteran’s diabetes mellitus and associated peripheral neuropathy of the lower extremities. Although a peripheral neuropathy examination was provided in April 2019, the Veteran was not provided a diabetes mellitus examination to address its current severity, to include whether his diabetes mellitus requires regulation of activities. Additionally, the April 2019 VA neuropathy examiner did not, as requested, attempt to distinguish between the seemingly overlapping symptoms of neuropathy and peripheral vascular disease affecting the Veteran’s lower extremities. Given the foregoing, the Board finds that remand is necessary for new and/or adequate examinations that comply with its prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Additionally, given now consideration of the issues of entitlement to separate compensable ratings for peripheral neuropathy of the bilateral upper extremity prior to June 16, 2017, and to a TDIU due solely to diabetes mellitus and its complications, the Board finds that efforts should be made to ensure all relevant treatment records have been associated with the claims file. The matters are REMANDED for the following action: 1. With any assistance required of the Veteran, obtain all outstanding VA and private treatment records, to include any records relating to peripheral neuropathy of the upper extremities prior to June 2017, and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination(s) to determine the nature and severity of his service-connected diabetes mellitus and diabetic peripheral neuropathy of the right and left lower extremities. The claims folder must be made available to the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported. All objective and subjective symptoms should be described in detail. In particular, the examiner should address the following: (a) To the extent possible, identify all signs and symptoms and functional impact attributable solely to the Veteran’s peripheral neuropathy of the lower extremities, separate from peripheral vascular disease. (b) Approximate the date of onset of the Veteran’s peripheral neuropathy of the upper extremities with consideration of complaints of upper extremity symptoms as early as February 2007. (c) Describe the functional and occupational impact of the Veteran’s diabetes mellitus and associated complications, including neuropathy of the bilateral upper and lower extremities. A rationale for all opinions should be provided. If you cannot provide any of the requested opinions without resorting to speculation, please indicate this and provide a supporting rationale as to why that is so. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.