Citation Nr: 1303689 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-28 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 3. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus. 4. Entitlement to initial compensable evaluations for diabetic neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from April 1973 to May 1977. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The AOJ assigned a separate non-compensable evaluation for erectile dysfunction. In addition, special monthly compensation has been awarded. The issue is not before the Board. The issue of entitlement to initial compensable evaluations for diabetic neuropathy of the bilateral lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A claim for service connection for ringing in the ears was initially denied by an August 1994 rating decision. Service connection for tinnitus was again denied in an October 1994 rating decision; and the Veteran's requests to reopen his claim for service connection for tinnitus were denied in January 1996 and December 1999. None of these determinations were appealed. 2. Evidence submitted subsequent to the last prior final denial in December 1999 is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for tinnitus and does not relate to an unestablished fact necessary to substantiate the claim. 3. A claim for service connection for hearing loss was initially denied by an October 1994 rating decision that was not appealed. The Veteran's requests to reopen his claim for service connection for hearing loss were denied in January 1996 and December 1999. None of these determinations were appealed. 4. Evidence submitted subsequent to the last final prior denial in December 1999 is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for hearing loss and does not relate to an unestablished fact necessary to substantiate the claim. 5. At no time during the appeal period has the probative evidence demonstrated that the Veteran's diabetes mellitus has required regulation of activities. CONCLUSIONS OF LAW 1. The December 1999 rating decision which denied the Veteran's request to reopen a claim for service connection for tinnitus is final. 38 U.S.C. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. New and material evidence has not been submitted, and the claim of entitlement to service connection for tinnitus is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The December 1999 rating decision which denied the Veteran's request to reopen a claim for service connection for hearing loss is final. 38 U.S.C. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 4. New and material evidence has not been submitted, and the claim of entitlement to service connection for hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.119, Diagnostic Code 7913 (2012). 6. The criteria for a separate compensable rating for erectile dysfunction have not been met at any time during the appellate period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to requests to reopen, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate those element or elements required to establish service connection that were found insufficient in the previous denial. In other words, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. The basis for the denial in the prior decision can be ascertained from the face of that decision. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to increased rating claims, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009) (Vazquez-Flores II); Vazquez-Flores v. Shinseki, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I). VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in June 2007 and May 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Kent, 20 Vet. App. at 1, Dingess, 19 Vet. App. at 473, and Vazquez-Flores I and II. Together, the letters informed the appellant of what evidence was required to reopen and substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. Both letters specifically advised the veteran that he should tell VA about or give to VA that may affect how VA assigns a disability evaluation included statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The record also indicates that the Veteran is receiving Social Security disability benefits; however, the duty to obtain records only applies to records that are "relevant" to the claim. 38 U.S.C.A. § 5103A(b)(1); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). The Veteran testified in March 1999 that he was receiving SSA disability benefits because of his back disorder. What is "of consequence" in this case is whether the Veteran's hearing loss or tinnitus are related to his military service as well as the current severity of his diabetes mellitus. There is no indication that Social Security records would include any such information. See also Golz v. Shinseki, 590 F.3d 1317 (2010) (SSA records are relevant if related to the injury claimant is seeking benefits for and there is a reasonable possibility of substantiating claim). As such, there is no indication that the SSA records would be relevant to the claims on appeal. Remanding the case to obtain such records would serve no useful purpose. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded a VA examination in September 2007. 38 C.F.R. § 3.159(c)(4). The September 2007 VA examiner addressed the severity of the Veteran's diabetes mellitus in conjunction with a review of the claims file and physical examination of and interview with the Veteran. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected diabetes mellitus since he was last examined. 38 C.F.R. § 3.327(a). Although the Veteran points out in his January 2013 Appellant's Brief that the last VA examination was over 64 months old and that the examination of record is too old to adequately evaluate the disability, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Veteran September 2007 VA examination report is thorough and supported by VA outpatient treatment records. As the Veteran has not related, and the evidence does not show, that his disability has materially worsened in severity since the September 2007 VA examination (requiring regulation of activities or with episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization or more than monthly visits to a diabetic care provider), the Board finds that the examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) New and Material Evidence In decisions dated in August 1994 and October 1994, the RO denied the Veteran's claim for service connection for ringing in the ears and tinnitus. Service connection for hearing loss was also denied in the October 1994 rating decision. The Veteran did not appeal these decisions. The Veteran's requests to reopen his claims for service connection for hearing loss and tinnitus were denied in rating decisions dated in January 1996 and December 1999. The Veteran did not appeal these decisions. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). We also note that no evidence was received within one year of notification of the 1999 rating decision. Thus, the December 1999 decision is final. The Veteran's application to reopen his claims of service connection for bilateral hearing loss and tinnitus was received in June 2007. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board notes that by an April 2008 rating decision, the RO declined to reopen the Veteran's claims of entitlement to service connection for hearing loss and tinnitus. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (2012). Sensorineural hearing loss can be service-connected on such a basis. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (hereafter "the Court"), has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. In this case, in August 1994, service connection for ringing in the ears was denied on the basis that the Veteran's service medical records were silent for treatment for ringing in the ears. The RO noted that the Veteran stated that ringing in the ears was detected during a VAMC appointment in 1994. In October 1994, service connection for hearing loss was denied on the basis that the service medical records, and, in particular, the separation examination in May 1977 showed the Veteran had completely normal hearing and that the first evidence of hearing loss was shown on VA audiological evaluation in August 1994. That report noted sensorineural hearing loss. Service connection for tinnitus was denied on the basis that VA audiological evaluation in August 1994 showed tinnitus had increased since Bell's palsy was diagnosed in July 1994. In essence, at the time of the prior decisions, there record included that Veteran's claim, post-service evidence of sensorineural hearing loss and tinnitus. However, the AOJ rejected in-service origin or a relationship to service. In this regard, additional evidence received since the December 1999 rating decision includes various VA treatment records which shows moderate to severe high frequency sensorineural hearing loss. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In regard to the evidence received since the December 1999 rating decision, the Board finds that the VA treatment records showing evidence of current hearing loss is cumulative and redundant. During the course of this appeal, on September 2, 2010, VA issued Fast Letter 10-35, Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicates that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. In such cases, where there is sufficient evidence of a current disability and the in-service exposure to hazardous noise is conceded based on the Duty MOS Noise Exposure Listing, VA is obligated to request a VA examination and opinion to determine if there is a medical nexus. The level of probability of exposure conceded, such as "Highly Probable" or "Moderate," should be included in the information provided to the examiner in the body of the examination request. The Board notes that the Veteran testified in March 1999 that he was exposed to in-service noise such as a 3-inch 50 cannon without hearing protection while he was at his battle station aboard ship. The December 1999 rating decision noted that although the Veteran testified as to unprotected exposure to noise while in service, his hearing at separation was normal. The RO specifically noted that it was not found that exposure to noise during the Veteran's military service which ended in 1977 caused delayed hearing loss. Thus, any argument relating that the Veteran was exposed to acoustic trauma, has already been considered by the RO and is not considered new and material evidence. The Board has considered the evidence received since the December 1999 rating decision and finds that the evidence added to the record is cumulative. The evidence had previously established that he had hearing loss and tinnitus. Evidence tending to show that he still has tinnitus and sensorineural hearing loss is cumulative. Similarly, his own assertions are cumulative of his prior claims. Accordingly, the Board finds that the evidence received subsequent to December 1999 rating decision is not new and material and does not serve to reopen the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for his already established service-connected diabetes mellitus, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus The Veteran's service-connected diabetes mellitus has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7913 (2012) which provides a 20 percent rating for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is for application when diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent evaluation requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Service connection has been established for peripheral neuropathy of the lower extremities, as secondary to the diabetes mellitus, and these disabilities have been separately rated. As such, peripheral neuropathy may not be considered in the evaluation of the service-connected diabetes mellitus. 38 C.F.R. § 4.14; see also 38 C.F.R. § 4.120, Diagnostic Code 7913, Note (1). In addition, special monthly compensation has been granted for loss of use of a creative organ. The Veteran underwent a VA examination in September 2007 at which time he reported that he did not have a history of diabetic ketoacidosis and was not having problems with hypoglycemia. The Veteran reported that on average, he visited the doctor four times per year for his diabetes and that he experienced tingling and numbness of his left foot. The Veteran denied progressive weight loss, progressive loss of strength, abnormal sensation, urinary incontinence, and fecal leakage. The Veteran reported that during the day, he urinated five times at intervals of three hours and during the night he urinated three times at intervals of two hours. The Veteran reported that treatment of his diabetes included medication (Metformin and Glyburide, both taken three times per day as well as insulin (NPH insulin administered once per day). The Veteran stated that his diabetes had affected his eyes for the prior five years resulting in the eye problem of blurry vision. The Veteran stated that his diabetes did not affect his skin; and the examiner noted that the Veteran's diabetes did not affect his heart, arteries, or kidneys. The Veteran denied leg pain after walking distances, calf pain at rest, and persistent coldness of the extremities. The examiner noted that the Veteran had a history of hypertension for five years and that he was on the medication Lisinopril. From the Veteran's report, the functional impairment was blurred vision, insulin dependence, slow healing, and erectile dysfunction. Physical examination demonstrated that three blood pressure readings were 125/85, 130/88, and 128/88. Examination of the eyes including the funduscope was within normal limits. Examination of the extremities revealed atrophic skin changes with absence of hair and atrophic skin changes with dystrophic nails. There were no findings of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or atrophic skin changes with thin skin. Examination of the penis and testicles revealed normal findings. Peripheral pulses examination revealed femoral, popliteal, dorsalis pedis, and posterior tibial pulses all 2+. Peripheral nerve examination was within normal limits. Neurological examination of the upper and lower extremities revealed normal motor function, sensory function, and reflexes. Comprehensive Metabolic Panel test results showed glucose of 182. Urinalysis showed a presence of sugar but was absence protein, RBC, hyaline casts, and granular casts. The examiner diagnosed the Veteran as having type II diabetes mellitus, erectile dysfunction, and lower extremity diabetic peripheral neuropathy resulting in neuralgia. The examiner noted that the Veteran's diabetes did not cause any restriction of activities. The Board has reviewed the evidence of record and that the lay and medical evidence is against the claim. There is no dispute that the veteran requires oral hypoglycemic agents, insulin, and a restricted diet to control his diabetes mellitus. In addition, the Board notes that the record is replete with episodes of hypoglycemia over the years. The probative evidence of record, however, fails to demonstrate that the Veteran's diabetes requires a regulation of activities or hypoglycemia requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 38 C.F.R. § 4.20. His own statements establish that he receives less frequent care and that such care is best described as routine. For the entirety of the appeal period, the veteran has controlled his diabetes with a combination of oral medications, insulin and restricted diet. VA treatment records show that he is seen for routine and regular maintenance of his condition; however no VA treatment records indicate that the Veteran's diabetes required him to avoid any strenuous activity. Given this, and in light of the VA examination which clearly indicated that a regulation of activities was not required, the Board concludes that the Veteran's disability picture does not most nearly approximate the next-higher 40 percent evaluation under Diagnostic Code 7913. Moreover, the criteria for a disability rating in excess of 20 percent have not been met during any portion of the appeal period. See Hart, 21 Vet. App. at 505. The Board has also considered whether a separate evaluation for any compensable complication of the Veteran's service-connected diabetes is warranted pursuant to Note (1) following Diagnostic Code 7913 which instructs the rater to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. In this case, the Board finds that the Veteran is not entitled to a separate compensable evaluation for hypertension as it has not been associated with the service-connected diabetes mellitus. As noted above, the September 2007 VA examiner diagnosed the Veteran as having type II diabetes mellitus, erectile dysfunction, and lower extremity diabetic peripheral neuropathy resulting in neuralgia. The examiner specifically stated that the Veteran did not have a non-diabetic condition that was aggravated by the diabetes. Similarly, the September 2007 VA examiner also indicated that examination of the Veteran's eyes were within normal limits. In addition, Optometry Outpatient Notes dated in June 2009 and March 2011 assessed the Veteran as having history of diabetes mellitus type 2 and no ocular manifestations of either eye. To the extent that he reports that he has diabetic eye impairment, such lay evidence is far less probative and credible than the report of the medical examiner. Further, the Board finds that the Veteran is has been assigned a separate non-compensable evaluation for erectile dysfunction. Pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522, a 20 percent rating applies where the evidence demonstrates penis deformity with loss of erectile power. Although the veteran has been diagnosed with erectile dysfunction, there is nothing in the record to indicate that any deformity of the penis exists. Therefore, the Veteran's overall disability picture is not found to be commensurate with the criteria for a 20 percent evaluation under Diagnostic Code 7522. Although no alternate diagnostic codes are applicable, it should be noted that the Veteran is receiving a special monthly compensation pursuant to 38 U.S.C.A. § 1114(k), and 38 C.F.R. § 3.350(a), on account of loss of use of a creative organ. As such, the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's type II diabetes mellitus. ORDER The application to reopen a claim for service connection for tinnitus is denied. The application to reopen a claim for service connection for hearing loss disability is denied. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is denied. REMAND The Veteran is appealing the evaluations for right and left lower extremity diabetic peripheral neuropathy. The VA treatment records indicate that the Veteran has mild numbing of the feet. However, in the Board's opinion there has not been sufficient testing to determine the current severity of the Veteran's bilateral lower extremity diabetic peripheral neuropathy. Initially, the RO has assigned a noncompensable evaluation for the Veteran's bilateral lower extremity diabetic peripheral neuropathy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8521. The September 2007 VA examiner did not, in fact, identify the nerve involved. As such, the Board finds that the Veteran should be afforded a VA examination to thoroughly assess the severity of his lower extremity diabetic peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity of his lower extremity diabetic peripheral neuropathy. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (sensory, organic changes or pain). 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs