Citation Nr: 22017964 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-08 815 DATE: March 27, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus is remanded. Entitlement to an initial separate and compensable disability rating for bilateral retinopathy associated with type II diabetes mellitus is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1964 until his honorable discharge in August 1968. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that in the original Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran did not request a Board hearing. See February 2018 VA Form Subsequently the Veteran was afforded the opportunity for a Board hearing in February 2022. However, the Veteran did not attend the hearing and the Board will address the issues on appeal based upon the evidence of record. The Veteran is hereby notified that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that the Veteran's representative asserts that there is no time for this appeal to be remanded and this appeal should be granted. However, as will be addressed in greater detail below, the evidence does not support increased disability ratings for the Veteran's claims, including but not limited to the claim of TDIU, and a remand is required. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus The Veteran was afforded a VA examination in May 2015. The May 2015 VA examiner indicated that the Veteran required more than 1 injection of insulin per day, but did not require regulation of activities as part of medical management of diabetes and that the Veteran's type II diabetes mellitus does not impact the Veteran's ability to work. The Veteran was afforded a VA examination in September 2018. The September 2018 VA examiner indicated under question 2A of the Disability Benefits Questionnaire that the Veteran requires insulin more than 1 injection per day, but in the narrative indicated that the Veteran required insulin once per week. Therefore, the October 2018 VA examination is internally inconsistent and inadequate. The Veteran submitted a Disability Benefits Questionnaire in January 2020. The January 2020 by his VA Nurse Practitioner that is his primary provider indicated that the Veteran requires the regulation of activities as part of medical management of diabetes mellitus, but did not provide examples of how the Veteran must regulate his activities. In contrast, she simply indicated "potential for hypoglycemia with increased physical activity." Furthermore, it is noted that, despite the indication in the January 2020 Disability Benefits Questionnaire completed by his VA primary care provider, the Veteran's VA treatment records are silent for regulation of daily activities (including by his VA primary care provider). Finally, the Board notes that the Veteran's VA treatment records and private treatment records are inconsistent. For example, the Veteran's private treatment records from July 2019 indicated that the Veteran was allergic to Metformin and had no mention of insulin. However, VA treatment records reflect a diagnosis of Metformin. 2. Entitlement to an initial separate and compensable disability rating for bilateral retinopathy associated with type II diabetes mellitus As a preliminary matter, the Board notes that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran has been afforded numerous examinations for his bilateral retinopathy associated with his type II diabetes mellitus. The May 2015 VA examiner found that there is no decrease in visual acuity or other visual field impairments associated with his bilateral retinopathy with a corrected distance visual acuity of 20/40 or better bilaterally without incapacitating episodes, nor visual field defects. However, subsequent VA examinations during the period on appeal raise additional questions, including of the May 2015 VA examination. The Veteran was afforded a VA examination in March 2018. The March 2018 VA examiner diagnosed bilateral pre-operative cataracts and noted VA treatment records note May 2012, January 2014, and March 13, 2015 eye examinations that diagnosed cataracts. The March 2018 VA examiner opined that the claimed eye condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition because "[it is] unknown which condition is referenced." Furthermore, the March 2018 VA examiner indicated that the Veteran did not have a visual field defect. However, the visual field charts appear to indicate that there may be visual field defect(s), especially in the right eye. See March 2018 VA examination. The Veteran was afforded another VA examination in September 2018. The September 2018 VA examiner diagnosed the Veteran with bilateral cataracts but noted that there was no pathology to render a diagnosis for retinitis. However, the examiner did not provide an explanation as to the Veteran's retinopathy or clearly indicate if it has resolved nor did he provide a nexus opinion on the Veteran's cataracts as to either direct or secondary service connection. For the above reasons, the Veteran's March 2018 and September 2018 VA examination are inadequate. 3. Entitlement to TDIU The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has asserted, through his representative, that he is unemployed and unemployable due to his service-connected disabilities, specifically his service-connected disabilities. See March 2022 Written Appellate Brief, p. 2. It is noted that the Veteran has submitted a January 2020 private opinion from a Nurse Practitioner that asserts that the Veteran is unemployable due to his diabetes, neuropathy, circulatory/vascular, and cardiac disease. It appears that the private provider included both service-connected and nonservice-connected disabilities and therefore the opinion is not adequate for the claim of TDIU. The Board finds that the issue of entitlement to a TDIU has been raised by the record and must be remanded for proper development pursuant to Rice. The RO has not addressed the issue of entitlement to a TDIU in the first instance. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment for his type II diabetes mellitus and/or a disability of his eyes, including his cataract surgery. Make two requests for the authorized records from the identified private provider(s), unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from November 9, 2018 to present, and any other VA treatment records from prior to November 9, 2018 that are not already of the record. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected type II diabetes mellitus. The entire claims file must be made available to and be 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. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is asked to specifically address when the Veteran was first prescribed insulin, when the Veteran was first prescribed insulin of at least one time per day, and when (if ever), the Veteran's type II diabetes mellitus required regulation of his daily activities, and provide one or more examples of how the Veteran must regulate his daily activities due to his type II diabetes mellitus. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral diabetic retinopathy. The entire claims file must be made available to and be 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. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must identify all disabilities of the eyes. If the Veteran's diabetic retinopathy has resolved, it must be clearly documented. For any other eye disability identified, including but not limited to bilateral cataracts (including post-operative cataracts) and glaucoma, the examiner must provide a clear description of the disability (i.e. if there were replacement lenses regarding the cataract surgery), the visual impairments of each identified disability, and a nexus opinion for each disability of the eyes if it is at least as likely as not (50 percent probability or greater) that the eye disability was caused by service or a service-connected disability; or was aggravated beyond its natural progression by a service-connected disability. The examiner is also asked, if possible, to provide a retrospective opinion clarifying the prior inadequate examination(s), paying particular attention to when the Veteran's impairment of the visual field and/or impairment of corrected distance visual acuity in either eye became 20/50 or worse (through treatment records and/or VA examination(s). If the examiner is unable to provide a retrospective opinion, the examiner must indicate if it is due to a lack of personal knowledge or a lack of general medical knowledge. 5. Complete any development necessary regarding the claim of entitlement to a TDIU and adjudicate the claim in the first instance based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate 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.