Citation Nr: A25021189 Decision Date: 03/07/25 Archive Date: 03/07/25 DOCKET NO. 230127-318781 DATE: March 7, 2025 ORDER Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU), since August 11, 2022, is dismissed as moot. REMANDED Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction and hypertension is remanded. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of the left upper extremity (LUE) (major) is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity (RUE) is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity (LLE) (femoral nerve) is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity (RLE) (femoral nerve) is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the LLE (sciatic nerve) is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the RLE (sciatic nerve) is remanded. Entitlement to an effective date earlier than August 11, 2022, for the grant of an increased 40 percent rating for peripheral neuropathy of the LUE (major) is remanded. Entitlement to an effective date earlier than August 11, 2022, for the grant of an increased 20 percent rating for peripheral neuropathy of the LLE (femoral nerve) is remanded. Entitlement to an effective date earlier than August 11, 2022, for the grant of an increased 20 percent rating for peripheral neuropathy of the RLE (femoral nerve) is remanded. Entitlement to an effective date earlier than August 11, 2022, for the grant of an increased 20 percent rating for peripheral neuropathy of the LLE (sciatic nerve) is remanded. Entitlement to an effective date earlier than August 11, 2022, for the grant of an increased 20 percent rating for peripheral neuropathy of the RLE (sciatic nerve) is remanded. Entitlement to TDIU prior to August 11, 2022, is remanded. Entitlement to an effective date earlier than August 11, 2022, for Dependents' Educational Assistance (DEA) benefits is remanded. FINDING OF FACT Effective August 11, 2022, the Veteran's service-connected disabilities have a combined evaluation of 100 percent. CONCLUSION OF LAW The claim for entitlement to TDIU since August 11, 2022, is dismissed as moot. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Navy from February 1969 to December 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2023 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a January 2023 VA Form 10182 (Decision Review Request: Board Appeal), the Veteran elected the Board's Hearing docket. The undersigned held a virtual hearing in October 2024. The Board may therefore only consider the evidence of record at the time of the January 2023 decision on appeal, as well as any evidence submitted by the Veteran - or his attorney - at the October 2024 hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. The Board notes that the Veteran listed entitlement to an earlier effective date for RUE peripheral neuropathy in his VA Form 10182. The January 2023 rating decision granted increased ratings as of the date of claim for all of the peripheral neuropathy issues except the RUE. Thus, the appeals for entitlement to increased ratings for peripheral neuropathies of the LUE, LLE, and RLE include an earlier-effective-date element as part of the one-year lookback period. The January 2023 rating decision denied entitlement to an increased rating for RUE peripheral neuropathy, however, which means any discussion of an earlier effective date would be premature at this time. Thus, the Board will not further address entitlement to an earlier effective date for RUE peripheral neuropathy. For the issues being remanded, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2). The Veteran contends that he qualifies for TDIU based on his service-connected disabilities.? He filed a VA Form 21-0966 (Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC) on August 11, 2022, followed by a September 2022 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In the VA Form 21-8940, he stated that his diabetes mellitus, type II; hypertension; and neuropathy prevented him from securing or following substantially gainful employment. The January 2023 rating decision granted increased ratings for multiple disabilities effective the date of claim (August 11, 2022), which resulted in a 100 percent combined evaluation effective that date. Furthermore, the Veteran has not asserted - and the record does not support - that he is precluded from obtaining or maintaining substantially gainful employment due to any single service-connected disability at issue here, considered alone. Thus, the question of TDIU entitlement as of August 11, 2022, is moot. REASONS FOR REMAND Remand is permitted only to correct a pre-decisional error or for any other error in fulfilling a statutory or regulatory duty, the correction of which raises a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802. Increased Ratings VAMC records indicate not only that the Veteran received non-VA treatment but also that records from the non-VA treatment were uploaded into the VA system as VISTA images. This includes an August 2022 VA Community Care record from OSF Medical Group Endocrinology & Diabetes Center. The VISTA images are not associated with the claims file. Records from treatment contracted through VA Community Care must be associated with the claims file on remand. Effective Dates Earlier than August 11, 2022, for Increased Ratings Any decision regarding the appropriate effective dates for peripheral neuropathy of the LUE and bilateral lower extremities is intertwined with the development needed for the increased-rating issues. As was explained at the October 2024 hearing, the analysis is limited to consideration of the one-year period prior to receipt of the increased-rating claims under 38 C.F.R. § 3.400(o)(2) because there was no claim for increased rating pending prior to the claim inferred from a September 2022 VA Form 21-8940. The Board has considered whether there was any earlier claim pending. Although the Veteran reported "intermittent breakthrough neuropathy pain in hands and feet" in a January 2019 VAMC record, this neither reflected an intent to file for an increased rating nor met the requirements of a formal claim. Effective March 24, 2015, VA amended its regulations to require that all claims be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. 38 C.F.R. § 3.1(p) (2014). The amendments also, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157 (2014). See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Later, the Veteran filed a March 2021 formal claim and a July 2021 rating decision considered the evidence of record, including the January 2019 VAMC record, before continuing the ratings for his lower extremity peripheral neuropathies. As with the associated increased-rating issues, remand is necessary to obtain VISTA images that are not associated with the claims file, as these records may indicate whether an effective date within the year prior to August 11, 2022, based on actual worsening, is warranted. Entitlement to TDIU prior to August 11, 2022 The issues of entitlement to TDIU prior to August 11, 2022, is inextricably intertwined with the remanded rating and effective date issues. Thus, this issue must be remanded. Effective Date Earlier than August 11, 2022, for Basic Eligibility to DEA Benefits The unassociated private treatment records may impact the ratings and effective dates assigned for the disabilities at issue. Any changes would, in turn, have the potential to affect the effective date assigned for basic eligibility to DEA benefits. Thus, this issue must also be remanded. The matters are REMANDED for the following action: Complete the proper development to obtain medical records scanned into VISTA imaging, including OSF Medical Group Endocrinology & Diabetes Center noted in the VAMC record in August 2022 (contracted through VA Community Care). Any VISTA imaging related to such care must be produced. All efforts must be documented, and unavailability of records certified as appropriate. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.