Citation Nr: 21029325 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-36 271 DATE: May 13, 2021 REMANDED Entitlement to an effective date earlier than September 26, 2013, for the award of service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an effective date earlier than September 26, 2013, for the award of service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a disability rating higher than 20 percent for service connected type II diabetes mellitus (DMII) with erectile dysfunction is remanded. Entitlement to an initial disability rating higher than 10 percent for service-connected peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial disability rating higher than 10 percent for service-connected peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1996 to November 1968, including service in the Republic of Vietnam. The current appeal before the Board of Veterans' Appeals (Board) arose from July 2014 and February 2015 rating decisions in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for peripheral neuropathy of the right and left lower extremities, and assigned each disability a 10 percent disability rating, effective March 13, 2014, continued a 20 percent rating for DMII, and denied entitlement to a TDIU. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In a June 2017 rating decision, during the pendency of the Veteran's appeal, the Agency of Original Jurisdiction (AOJ) granted an earlier effective date of September 26, 2013, for the award of service connection for the Veteran's peripheral neuropathy of the right and left lower extremities. The Veteran, however, has continued to pursue his appeal for an earlier effective date for the award of service connection for these disabilities. Earlier effective dates for peripheral neuropathy of the lower extremities In February 2015, the Veteran submitted a VA Form 21-4142 in which he requested that VA obtain his VA treatment records from the Minneapolis VA Healthcare System, including the Chippewa Valley VA Community Outpatient Clinic, dated since January 2012, in support of his claims on appeal. While VA clinical treatment records dated from May 2013 have been associated with the claims file, it remains unclear whether earlier VA treatment records are available. As it appears that additional VA clinical treatment records may be available, the Board cannot foreclose the possibility that any additional records may support the claims for earlier effective dates for the award of service connection for peripheral neuropathy of the lower extremities. In this regard, the Board notes that, while the presence of medical evidence alone does not establish an intent to seek entitlement to service connection, if additional, earlier VA treatment records are available, there is a possibility that they may mention the lower extremity neuropathy in a way that, sympathetically read, could be understood as seeking disability benefits. Cf. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a)). Thus, these matters must be remanded to accord the AOJ an opportunity to make appropriate efforts to obtain outstanding VA clinical treatment records, to include records from the Minneapolis VA Healthcare System dating from January 2012. Higher ratings for DMII and peripheral neuropathy of the lower extremities The Veteran was last afforded VA-contracted examinations for his service-connected DMII and peripheral neuropathy of the lower extremities in January 2017. The evidence of record, however, indicates that these disabilities have been increasing in severity during the course of the period on appeal. Specifically, the January 2017 peripheral neuropathy examination revealed findings of more severe incomplete paralysis when compared with prior reports. Additionally, a September 2017 VA clinical report indicated that the Veteran's neuropathy was of such a severity as to require him to examine his feet daily. Similarly, ongoing VA clinical treatment records indicate that the Veteran's diabetes has increased in severity, with continually increasing A1C laboratory findings. Given this evidence, it appears that the January 2017 VA-contracted examination reports may not reflect the current severity of the Veteran's DMII and lower extremity peripheral neuropathy. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, remand is warranted to afford the Veteran new VA examinations to assess the current severity of these service-connected disabilities. TDIU The matter of entitlement to a TDIU is inextricably intertwined with the higher rating claims remanded herein. Notably, in his October 2014 application for TDIU, the Veteran stated that his DMII and neuropathy were disabilities that specifically prevented him from securing or following substantially gainful occupation. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, consideration of entitlement to a TDIU must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Finally, with respect to all claims, the Board notes that VA clinical treatment records and a VA-contracted examination report, relevant to the claims on appeal, were associated with the claims file after the AOJ last adjudicated the claims in an June 2017 Statement of the Case, and after the appeal was certified to the Board. While a waiver of initial AOJ review of the evidence has not been received (see 38 C.F.R. § 20.1304(c)), as these claims are being remanded for further development, the AOJ will have the opportunity to review this evidence on remand. Accordingly, these matters are hereby REMANDED for the following action: 1. Ensure that all available, outstanding VA treatment records, to include any records from the Minneapolis VA Healthcare System, including from the Chippewa Valley VA Community Outpatient Clinic, dating from January 2012, are associated with the claims file. As necessary, follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected peripheral neuropathy of the lower extremities. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all signs and symptoms necessary for evaluating the lower extremity peripheral neuropathy, as well as any complications, under the appropriate rating. The examiner should specifically assess the current severity of paralysis of each nerve involved, identifying whether any incomplete nerve paralysis is mild, moderate, moderately severe, or severe. 3. Also, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected type II diabetes mellitus with erectile dysfunction. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected DMII, type II with erectile dysfunction under the rating criteria. The examiner must expressly state whether or not the Veteran's diabetes mellitus requires insulin, restricted diet, and regulation of activities based on avoidance of strenuous activities. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.