Citation Nr: 21026180 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-06 588 DATE: April 30, 2021 REMANDED Entitlement to an increased disability evaluation for right lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to November 15, 2017, is remanded. Entitlement to an increased disability evaluation for right lower extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since November 15, 2017, is remanded. Entitlement to an increased disability evaluation for left lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to November 15, 2017, is remanded. Entitlement to an increased disability evaluation for left lower extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since November 15, 2017, is remanded. Entitlement to an increased disability evaluation for right upper extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to May 20, 2019, is remanded. Entitlement to an increased disability evaluation for right upper extremity diabetic peripheral neuropathy, rated as 30 percent disabling for the rating period since May 20, 2019, is remanded. Entitlement to an increased disability evaluation for left upper extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to May 20, 2019, is remanded. Entitlement to an increased disability evaluation for left upper extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since May 20, 2019, is remanded. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD) with alcohol abuse, initially rated as 70 percent disabling, is remanded. Entitlement to an increased disability evaluation for diabetes mellitus with erectile dysfunction, initially rated as 20 percent disabling, is remanded. Entitlement to an increased disability evaluation for bilateral cataracts, initially rated as 10 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from July 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012, January 2013, and January 2014 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a February 2018 rating decision, the RO assigned an increased 20 percent disability evaluation, per lower extremity, for the Veteran’s right and left lower extremity diabetic neuropathy, effective from November 15, 2017. In an October 2020 rating decision, the RO assigned an increased, 70 percent disability evaluation for PTSD for the entire rating period on appeal; a 30 percent disability rating for the Veteran’s right upper extremity diabetic peripheral neuropathy and a 20 percent disability evaluation for the Veteran’s left upper extremity diabetic peripheral neuropathy, effective May 5, 2019; and a separate, 10 percent disability evaluation for the Veteran’s bilateral cataracts, effective January 5, 2012. Nevertheless, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in October 2020. The case has since been returned to the Board for appellate review. 1. Entitlement to an increased disability evaluation for right lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to November 15, 2017, is remanded. 2. Entitlement to an increased disability evaluation for right lower extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since November 15, 2017, is remanded. 3. Entitlement to an increased disability evaluation for left lower extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to November 15, 2017, is remanded. 4. Entitlement to an increased disability evaluation for left lower extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since November 15, 2017, is remanded. 5. Entitlement to an increased disability evaluation for right upper extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to May 20, 2019, is remanded. 6. Entitlement to an increased disability evaluation for right upper extremity diabetic peripheral neuropathy, rated as 30 percent disabling for the rating period since May 20, 2019, is remanded. 7. Entitlement to an increased disability evaluation for left upper extremity diabetic peripheral neuropathy, rated as 10 percent disabling for the rating period prior to May 20, 2019, is remanded. 8. Entitlement to an increased disability evaluation for left upper extremity diabetic peripheral neuropathy, rated as 20 percent disabling for the rating period since May 20, 2019, is remanded. 9. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), initially rated as 70 percent disabling, is remanded. 10. Entitlement to an increased disability evaluation for diabetes mellitus, initially rated as 20 percent disabling, is remanded. 11. Entitlement to an increased disability evaluation for bilateral cataracts, initially rated as 10 percent disabling, is remanded. The Veteran asserts that his service-connected PTSD, diabetic peripheral neuropathy of the right and left upper and lower extremities, diabetes mellitus with erectile dysfunction, and bilateral cataracts are more severe than presently evaluated. The Board observes that Veteran was most recently afforded a VA examination for his PTSD in December 2017, and that his peripheral neuropathy of the upper extremities, diabetes mellitus with erectile dysfunction, and cataracts were last evaluated in May 2019. In this regard, the Board observes that the Veteran’s recent treatment records for his diabetes mellitus reflect that his medication dosages increased since the May 2019 VA examination, which indicates a possible worsening in symptomatology. Moreover, the May 2019 peripheral neuropathy examination found that the Veteran did not have peripheral neuropathy of the lower extremities. However, the diagnosis is not in question and moderate symptoms were noted at his December 2017 VA examination; such inconsistencies must be reconciled, and an accurate evaluation of his current symptomatology is required. Likewise, clarification as to whether the Veteran’s service-connected diabetes mellitus with erectile dysfunction caused regulation of activities is necessary; to this point, the Board observes that the May 2019 VA examiner’s findings are inconsistent with the Veteran’s VA treatment records which do not reflect that the Veteran requires regulation of activities due to his diabetes mellitus, and no rationale was provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Veteran must be provided with examinations which consider the current severity of his service-connected disabilities on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Additionally, the February 2019 Board remand directed the RO to obtain a medical opinion as to whether the Veteran’s urinary frequency and nocturia were secondary to the Veteran’s diabetes mellitus; a May 2019 VA medical opinion found that the Veteran’s urinary frequency, nocturia, and non-alcoholic liver disease are due to the Veteran’s service-connected diabetes mellitus and hypertension. Nonetheless, the RO has not considered whether the Veteran’s urinary complaints and liver disease should be evaluated as part and parcel of the Veteran’s diabetes mellitus evaluation or whether the Veteran is entitled to separate disability evaluations for these complications, as directed in the February 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that additional relevant VA medical evidence was received and uploaded into the Veteran’s claims file prior to the Veteran’s claims being returned to the Board. See VA Treatment Records dated October 2020 to February 2021. A review of the electronic claims folder does not show that that the Veteran or his representative waived consideration of that evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran’s claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran’s claims on appeal in the first instance. See 38 C.F.R. § 19.31(c) (the agency of original jurisdiction is to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. The Veteran should be provided VA diabetes mellitus examination in order to evaluate the Veteran’s current severity and manifestations of the service-connected diabetes mellitus. The claims file should be made available to the examiner for review in connection with the examination. The examination report should include a statement as to the effect of the service-connected diabetes mellitus on his occupational functioning and daily activities. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 3. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected diabetic peripheral neuropathy of the right and left upper extremities and right and left lower extremities. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 4. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected PTSD. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran’s complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 5. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected bilateral cataracts. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 6. The AOJ must consider whether all manifestations and/or complications of the Veteran’s service-connected type II diabetes mellitus disability are appropriately rated, to include whether a separate rating is warranted for urinary frequency, nocturia, and/or liver disease. 7. After completing all indicated development, the AOJ should readjudicate the remaining claims on appeal, in light of all of the evidence of record. If any of the claims remain denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.