Citation Nr: 21009776 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-45 572 DATE: February 23, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) exclusive of the period from February 20, 2008, to March 31, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The AOJ received the Veteran’s initial claim to establish service connection for diabetes mellitus, type II, on December 15, 2005, and service connection for this disability, among others, was granted in a September 2006 rating decision. Within the appeal period of the September 2006 rating decision, the Veteran submitted new and material evidence pertinent to the initial rating for this disability, and the AOJ readjudicated the downstream issue in a January 2007 rating decision. Again, the Veteran submitted new and material evidence pertinent to this initial rating and a formal claim for a TDIU within the appeal period of the January 2007 rating decision. In response, the AOJ readjudicated the initial rating for diabetes mellitus, type II, and other issues, to include entitlement to a TDIU in the February 2009 rating decision, from which this appeal stems. In light of above, the appeal period for each of the Veteran’s appealed issues is from December 15, 2005, to the present. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In May 2014, the Veteran presented sworn testimony during a personal hearing in Detroit, which was conducted by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s VA claims file. In July 2014, the Board, among other actions, remanded the issues currently on appeal, among others, for further evidentiary and procedural development. The AOJ continued the previous denials in a February 2015 supplemental statement of the case (SSOC), and the issues remaining on appeal were returned to the Board for further appellate proceedings. In May 2016, the Board denied the issues currently on appeal, among others, and the Veteran filed a timely appeal of this denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2017 Order, the Court endorsed a Joint Motion for Partial Remand (Joint Motion) executed by an attorney representing the Veteran and VA’s Office of General Counsel (OGC) dated in June 2017, which vacated the portion of the May 2016 Board decision that denied the issues remaining on appeal and remanded them back to the Board with guidance and instructions. In December 2017 and December 2019, the Board, again, remanded these matters to the AOJ for further evidentiary development consistent with the Court-endorsed June 2017 Joint Motion. The Board’s recent remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. Additional matter As noted by the Board in the December 2017 and December 2019 remands, the Court’s July 2017 Order also endorsed a June 2017 Joint Motion to Terminate the Appeal, In Part, according to the terms contained in a Stipulated Agreement entered into by an attorney representing the Veteran and OGC. By virtue of this Joint Motion, the parties agreed (1) to set aside and terminate, with prejudice, the portion of the May 2016 Board decision which denied the issue of entitlement to an evaluation in excess of 10 percent prior to July 10, 2012, and zero percent from July 10, 2012, (2) to restore the 10 percent evaluation for service-connected diabetic retinopathy from July 10, 2012, to the present, and (3) to notify VBA to implement this restoration “promptly.” The matter was ultimately implemented by the AOJ in a December 2020 rating decision which, in addition to the actions noted above, recharacterized the Veteran’s service-connected diabetic retinopathy to include glaucoma and left visual field defect and increased the assigned initial evaluation from 10 percent to 20 percent, effective from December 1, 2020. While the Board acknowledges the Court’s holding in AB v. Brown, 6 Vet. App. 35, 38-39 (1993), this issue does not remain in appellate status in light of the parties’ agreement within the July 2017 Court-endorsed Joint Motion to Terminate the Appeal, In Part. Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal.] 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, is remanded. In the December 2019 remand, the Board directed the AOJ to request that the Veteran identify any outstanding private treatment records pertinent to the issues on appeal and obtain any such records. In response, the AOJ sent the Veteran a letter requesting this information several VA Forms 4142 for the Veteran to complete and submit in connection with any identified records. Although the Veteran did not reply to the AOJ’s July 2020 letter, he submitted a written statement to the ophthalmologist who conducted the December 2020 VA eye examination that included the names and addresses of the private physicians from whom he received treatment for his service-connected diabetes mellitus, type II, and associated disabilities. This statement reflects the Veteran’s consent for VA to contact these physicians to obtain update treatment records. No steps were subsequently taken to obtain this reasonably identified pertinent evidence. While the Board acknowledges that the Veteran did not submit the releases for these records that the AOJ provided, the also Board observes that the December 2020 VA examination reports reflect that the Veteran’s service-connected diabetic retinopathy with glaucoma and left visual field defect greatly hampers his ability to read. Clearly, the Veteran receives private treatment for his service-connected diabetes mellitus, type II, and he has provided the AOJ with the names and addresses of these private physicians. Moreover, he specifically stated that VA has his consent to obtain these identified, pertinent private treatment records. In the limited facts of the present case, the Board concludes that it is likely that the Veteran’s failure to respond to the AOJ’s July 2020 letter was the result of his inability to read the letter’s contents and instructions. Nonetheless, the Veteran provided the AOJ with the information and permission necessary to obtain this pertinent evidence at the December 2020 VA examination. Accordingly, another remand is necessary in order to ensure that VA fulfills its duty to assist the Veteran by obtaining this identified, pertinent, and outstanding evidence. To this point, the Veteran’s accredited representative is encouraged to assist him in order to complete and submit the necessary releases. 2. Entitlement to a TDIU exclusive of the period from February 20, 2008, to March 31, 2008, is remanded. The record reflects that the Veteran last participated in a substantially gainful occupation in 1998, when he retired from his position as a sanitation supervisor at a General Motors plant due to a combination of years of service and age. Although the Veteran reported to various VA examiners that much of his former occupation entailed “sitting around” and directing the actions of others, he was also required to move about the large plant on foot or by driving a motorized scooter. The Board notes that a private physician stated in a January 2018 Disability Benefits Questionnaire (DBQ) that the Veteran was unable to walk long distances due to his service-connected diabetes mellitus, type II, and peripheral neuropathy of the legs. Further, the VA ophthalmologist who conducted the December 2020 VA eye examination stated that driving would be dangerous and hazardous for the Veteran due to his service-connected left visual field defect. In sum, it appears that, while the Veteran may be capable of directing the actions of others, his service-connected disabilities, particularly his diabetes mellitus, type II, peripheral neuropathy of the legs, and left visual field defect, prevent him from travelling throughout the General Motors plant in order to give such direction. With the above in mind, the Board notes that service connection for peripheral neuropathy of the legs has been in effect throughout the entire appeal period (since December 15, 2005); however, the effective date of the grant of service connection for a left visual field defect is more tenuous. To this point, the December 2020 VA eye examiner noted that this disability was first identified at the December 2020 examination, but such was consistent with a history of cerebrovascular accident, which occurred in 2018. Complicating matters, in the December 2020 rating decision, the AOJ merged this disability for rating purposes with the Veteran’s service-connected diabetic retinopathy and glaucoma, which are both service-connected from December 15, 2005. Based on this contradictory evidence, it appears that the AOJ established service connection for left visual field from December 15, 2005, even though the disability may not have existed prior to the Veteran’s 2018 stroke or the date of the December 2020 VA eye examination. The Board concludes that a remand is necessary to obtain a medical opinion regarding this critical matter, as such is outside the Board’s purview. Lastly, the Veteran’s combined evaluation does not meet the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) prior to November 25, 2007; however, as explained above, there is evidence that the Veteran’s service-connected disabilities negatively impacted his employability during that time period. As such, the Board concludes that the Veteran’s TDIU must be referred to the Undersecretary for Benefits or the AOJ’s Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) for any period from December 15, 2005, to the present where the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) (presently, prior to November 25, 2007). The matters are REMANDED for the following actions: 1. The AOJ must utilize the information and permission provided by the Veteran at the December 2020 VA examination to seek and obtain private treatment records from Dr. R.K. and J.H. *If further information is needed from the Veteran regarding this matter, the AOJ is on notice that his service-connected eye disabilities greatly hamper his ability to read, and there is no indication in the record that he reads Braille. As such, all information and instruction must be conveyed to him by some other means, and the AOJ must take all reasonable steps to document communications with the Veteran and to ensure that the information is received and understood by the Veteran. The AOJ is encouraged to engage the Veteran’s accredited representative, if necessary, regarding this matter. 2. Thereafter, the AOJ must transfer the Veteran’s complete file to the VA ophthalmologist who completed the December 2020 VA eye examination. After another review of the complete record, the VA examiner is asked to address the following: a. Provide an approximate date of initial onset (month and year) of the following disabilities: i. Diabetic retinopathy; ii. Glaucoma; iii. Left visual field defect. b. Approximately when (month and year) did the above disabilities, individually or in concert with each other, make the Veteran’s operation of a motor vehicle, such as a motorized scooter, dangerous/hazardous? If the examiners cannot provide any opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiners shall 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 the particular question. *If the VA ophthalmologist who conducted the December 2020 VA eye examination is not available or believes that further examination is necessary to address the above, another such examination must be completed for the purpose of addressing the above. 3. Thereafter, the AOJ must readjudicate the Veteran’s appeal seeking an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II. If the benefit sought is not granted to the fullest extent, the Veteran and his accredited representative must be provided a copy of this readjudication and afforded an appropriate time to respond. 4. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran's claim for TDIU, to specifically include collecting and verifying information concerning his complete educational and occupational history, and scheduling him for additional VA examination(s) necessary for adjudicating the issue. 5. Thereafter, the AOJ must refer the TDIU issue to the Director of Compensation Service for consideration of assignment of an extraschedular evaluation under 38 C.F.R. § 4.16(b) for any period from December 15, 2005, to the present where his combined evaluation does not meet the schedular threshold of 38 C.F.R. § 4.16 (a), which is currently prior to November 25, 2007. 6. Thereafter, the AOJ must adjudicate the TDIU issue in light of any additional evidence added to the record. If the benefit is not granted to the fullest extent, the Veteran and his accredited representative must be provided a copy of this readjudication and afforded an appropriate time to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.