Citation Nr: 18160620
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-42 455
DATE:	December 27, 2018
REMANDED
Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity, is remanded.
Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity, is remanded.
REFERRED
The issue of whether a timely notice of disagreement has been filed with regard to the claim of entitlement to service connection for a right ankle injury is referred to the Agency of Original Jurisdiction (AOJ) for adjudication.
REASONS FOR REMAND
The Veteran served on active duty in the U.S. from June 1969 to May 1971.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).
The October 2015 statement of the case (SOC) adjudicated additional claims for an increased rating for cataracts and diabetes mellitus, as well as a claim of service connection for hypertension.  In the November 2015 substantive appeal (via VA Form 9), the Veteran limited his appeal to the Board to only the claim for an increased rating for peripheral neuropathy of both lower extremities.
The Board notes that in June 2014 and February 2015 rating decisions, the RO denied a claim of entitlement to service connection for a right ankle injury.  The injury stemmed from an incident where the Veteran fell out of a tree; he alleged the fall occurred secondary to his service-connected diabetes.  Subsequent medical records suggest the residuals from this injury may encompass more than just his right ankle.  Congressional inquiries and associated correspondence received by VA in November 2015 indicated the Veteran disagreed with the prior denials and believed he had appealed the issue.  Internal VA correspondence from April and May 2016 indicates the RO did not acknowledge the filing of a notice of disagreement with respect to those decisions and considered the claim to be no longer pending.  As the timeliness of filing a notice of disagreement is an appealable issue, it is referred to the AOJ for initial adjudication.  The disability before the Board in this appeal relates only to the diabetic peripheral neuropathy in the lower extremities.  It does not consider any residual disability from his tree-fall incident.
1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity, is remanded.
2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity, is remanded.
The Veteran seeks an initial rating in excess of 10 percent for diabetic peripheral neuropathy in each of his lower extremities.  This condition was identified and evaluated in a December 2010 VA examination for diabetes mellitus type II.  There have been no subsequent VA examinations related to this condition and there is a relative paucity of relevant evidence describing its current severity.  Moreover, in the August 2012 notice of disagreement, the Veteran reported that his neuropathy had worsened, he had less feelings in his legs, and his joints were burning daily.  In a January 2013 letter, the Veteran once more related that his neuropathy had increased in severity.  Given the forgoing, the Board finds that the evidence suggests a worsening of the service-connected diabetic peripheral neuropathy.  Reexamination is required to ascertain the current severity of the disability.  38 C.F.R. § 3.327(a).
The matters are REMANDED for the following actions:
1. Obtain and associate with the claims file any outstanding VA treatment records.
2. Schedule the Veteran for a VA examination to determine the current severity of his bilateral lower extremity diabetic peripheral neuropathy.  The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination.
In discussing related symptoms and functional effects, the examiner should clearly distinguish those attributable to the diabetic peripheral neuropathy from those relating to the Veteran’s other foot and leg injuries.  A complete rationale must be provided for all opinions expressed.
 
C. CRAWFORD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Mike A. Sobiecki, Associate Counsel

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