Citation Nr: 21009721 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-13 057 DATE: February 23, 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 20 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1968 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the November 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Procedural History In January 2007, VA granted service connection for both lower and upper peripheral neuropathy and assigned an initial 10 percent rating for these disabilities under DC 8520. See February 2007 VA Rating Decision. Additional medical records were received in April and May 2007. See January 2007 Private Electromyogram (EMG) Examination; April-May 2007 Dr. D.K. Treatment Records; May 2007 Dr. S.B. Treatment Records; May 2007-December 2010 VA Treatment Records. Thus, the RO reviewed all medical treatment records and indicated the initial rating of 10 percent for bilateral lower extremity peripheral neuropathy was continued. See November 2007 Rating Decision. As the Veteran did not timely appeal the November 2007 decision and new and material evidence was not actually or constructively received within one year of notice of its issuance, it became final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(b), 20.1103. In March 2010, the Veteran filed a request for an increased rating for his upper and lower extremities peripheral neuropathy due to an increase in severity. See March 2010 VA 21-4138, Statement in Support of Claim. The Veteran underwent a VA peripheral nerves examination in May 2010 and the RO continued the disability rating of 10 percent for bilateral lower extremity peripheral neuropathy. See May 2010 Rating Decision. As the Veteran did not timely appeal this decision and new and material evidence was not actually or constructively received within one year of notice of its issuance, it too became final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(b), 20.1103 In July 2014, VA received a request for an increased rating for upper and lower peripheral neuropathy and service connection for post-traumatic stress disorder (PTSD) in July 2014. See July 2014 VA-21-526b, Veteran’s Supplemental Claim. In a November 2014 rating decision, the RO denied the increased rating for the Veteran’s upper and lower extremities for peripheral neuropathy and service connection for PTSD. The Veteran filed a timely notice of disagreement (NOD) in December 2014 for all issues. See December 2014 VA 21-4138, Statement in Support of Claim in lieu of NOD. In a January 2018 statement of the case (SOC), the decision review officer increased the Veteran’s left and right lower peripheral neuropathy disabilities from 10 percent to 20 percent, individually, effective July 29, 2014, the date VA received the claim but the SOC did not address the Veteran’s PTSD. However, a January 2018 rating decision granted PTSD with an evaluation of 70 percent effective July 29, 2014, and bilateral lower extremity peripheral neuropathy was increased from 10 percent to 20 percent effective July 29, 2014. The Veteran filed a timely substantive appeal for peripheral neuropathy of bilateral lower extremities only in March 2018. See March 2018 VA Form 9. However, at the same time, the Veteran filed a VA Form 20-0995, Decision Review Request for higher-level review for his issue of PTSD. See March 2018 Rapid Appeals Modernization Program (RAMP) Opt-In Election. As the January 2018 SOC and the January 2018 rating decision were for the issues of left and right lower extremity peripheral neuropathy, the Board requested clarification if the requested higher-level review for PTSD included his issues of left and right lower extremity peripheral neuropathy, as well. See September 2020 Board Correspondence. The Veteran was notified in the September 2020 correspondence that his appeal was on the Board’s legacy docket, and no objection was received. It is the view of the Board that the peripheral neuropathy of the Veteran’s bilateral lower extremities is the only issue properly on appeal to the Board in the legacy system. The Veteran did not respond to the Board’s clarification correspondence whether to add his peripheral neuropathy of bilateral lower extremities issue to his March 2018 RAMP Opt-In election. Therefore, the March 2020 VA Form 20-0995 is considered invalid for the Veteran’s issue of peripheral neuropathy of bilateral lower extremities only. 38 C.F.R. §§ 20.200, 20.202, 20.302. While the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been adjudicated and appealed to the Board via a December 2019 VA Form 9, it is also part and parcel of these increased rating claims and will therefore be addressed herein. Remand Reasons Remand is required for the issuance of a supplemental statement of the case (SSOC). The increased rating claims were adjudicated in a March 2018 SOC. The Veteran perfected the appeal of these claims to the Board by filing a VA Form 9 later that same month. The case was transferred to the Board on April 3, 2018, and prior to that date VA developed additional evidence pertinent to this appeal. Specifically, on March 26, 2018, VA obtained a fee-basis VA examination that evaluated the current severity of the Veteran’s peripheral neuropathy. Such evidence is not subject to the automatic-waiver exception found in 38 U.S.C. § 7105(e) because it was evidence developed and obtained by VA rather than evidence submitted by the Veteran or his representative. Accordingly, remand is required for the issuance of an SSOC. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Issue a supplemental statement of the case that readjudicates the issues on appeal. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.