Citation Nr: 1306833 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 08-36 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral (left and right) upper extremity peripheral neuropathy, including as due to service-connected disabilities. 2. Entitlement to service connection for hypertension, also including as due to service-connected disabilities. 3. Entitlement to a rating higher than 20 percent for service-connected diabetes. 4. Entitlement to a rating higher than 30 percent for associated diabetic nephropathy prior to November 25, 2009. 5. Entitlement to an increased rating for left lower extremity peripheral neuropathy, rated as 0-percent disabling (so noncompensable) prior to January 12, 2009, and as 10-percent disabling since. 6. Entitlement to an increased rating for right lower extremity peripheral neuropathy, also rated as 0-percent disabling (so noncompensable) prior to January 12, 2009, and as 10-percent disabling since. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April 1970 to February 1972, including a tour in Vietnam. This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2008 rating decision, the RO granted a 0 percent (so noncompensable) rating for diabetic nephropathy, continued a 20 percent disability rating for the underlying diabetes, and denied service connection for hypertension and bilateral upper extremity peripheral neuropathy as claimed additional complications. During the pendency of the appeal, however, separate compensable evaluations of 10 percent each for right and left lower extremity peripheral neuropathy, another complication of the diabetes, were granted in a February 2009 rating decision. In April 2011, the RO increased the rating for the service-connected diabetic nephropathy to 30 percent effective August 27, 2009, and to 100 percent as of November 25, 2009. That increase in the rating for this disability did not entirely resolve the appeal, however, as there remains the question of whether the Veteran was entitled to a rating higher than 30 percent prior to receiving the highest possible rating of 100 percent as of November 25, 2009. With respect to increased ratings, as here, which are granted during the pendency of an appeal for a higher rating, the United States Court of Appeals for Veterans Claims (Court/CAVC) has held that on a claim for an original or increased rating, the appellant generally will be presumed to be seeking the maximum benefit allowed by law or regulations, and it therefore follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). A rating decision issued subsequent to a notice of disagreement (NOD) granting less than the maximum available rating does not "abrogate the pending appeal." Id. Consequently, as the Veteran has not withdrawn the appeal or indicated he is content with the increase in the rating for this disability only as of the date indicated, this claim is still in dispute for the time period immediately preceding his receipt of the 100 percent rating for this disability. In the April 2011 decision, for the period from November 25, 2009, he was rated as 100-percent disabled because of the nephropathy. As he was rated 100-percent disabled, the maximum schedular rating during this period, the question of an increased rating for this service-connected diabetic nephropathy for the period since November 25, 2009, is not at issue. He requested a hearing before the Board in November 2008. Because, however, he withdrew the hearing request in October 2010, the Board is proceeding with its adjudication of his appeal. See 38 C.F.R. § 20.704(e) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). In deciding this appeal, the Veteran's electronic ("Virtual VA") file has been reviewed, in addition to his physical claims file. Instead of just paper, the Virtual VA claims processing system is now being utilized. It is a highly secured electronic repository used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide Veterans' claims for benefits. The claim of entitlement to service connection for hypertension, including as secondary to service-connected disabilities, requires further development before being decided on appeal. So the Board is REMANDING this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Like the peripheral neuropathy affecting his lower extremities, the bilateral upper extremity peripheral neuropathy also is proximately due to the Veteran's service-connected diabetes, in other words, a complication of it. 2. For the entire period at issue in this appeal, his service-connected diabetes has required insulin and a restricted diet, but not regulation of his activities. 3. Prior to November 25, 2009, his service-connected diabetic nephropathy was manifested by constant albuminuria with some edema. 4. For the entire period at issue in this appeal, his left and right lower extremity peripheral neuropathies were manifested by no more than mild incomplete paralysis of the affected nerves. CONCLUSIONS OF LAW 1. Especially when resolving all reasonable doubt in his favor, the Veteran's bilateral upper extremity peripheral neuropathy, like that affecting his lower extremities, is secondary to his service-connected diabetes. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). 2. The criteria are not met, however, for a rating higher than 20 percent for the diabetes. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.119, Diagnostic Code 7913 (2012). 3. But resolving all reasonable doubt in his favor, for the period prior to November 25, 2009, the criteria are met for a higher 60 percent rating for his service-connected diabetic nephropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.115a, Diagnostic Code 7535 (2012). 4. Also resolving all reasonable doubt in his favor, for the period prior to January 12, 2009, the criteria are met for a rating of 10 percent for his service-connected left lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.115a, Diagnostic Code 8599-8521 (2012). 5. Resolving all reasonable doubt in his favor, for the period prior to January 12, 2009, the criteria are met for a rating of 10 percent for his service-connected right lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.115a, Diagnostic Code 8599-8521 (2012). 6. For the increased-rating period since January 12, 2009, the criteria are not met for a rating higher than 10 percent for the service-connected left lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.115a, Diagnostic Code 8599-8521 (2012). 7. For the increased-rating period since January 12, 2009, the criteria are not met for a rating higher than 10 percent for the service-connected right lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.115a, Diagnostic Code 8599-8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran a letter in September 2007and July 2008 that informed him of the requirements needed to establish an increased evaluation for diabetes and related complications. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. The Veteran has been afforded adequate examinations on the issues of an increased rating for service-connected diabetes, increased ratings for service-connected right and left lower extremity neuropathies, and increased rating for service-connected diabetic nephropathy. VA provided the Veteran with examinations in January 2006, October 2007, January 2009, and April 2010. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination report. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues of an increased rating for service-connected diabetes, increased ratings for service-connected right and left lower extremity neuropathies, and increased rating for service-connected diabetic nephropathy. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, neither the Veteran nor his representative has voiced any challenge to the adequacy of the Veteran's VA examinations. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The claim of service connection for bilateral upper extremity neuropathy, including as due to service-connected disabilities, has also been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard, 4 Vet. App. at 394. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is claiming that his bilateral upper extremity peripheral neuropathy is due to his service-connected diabetes, specifically service-connected diabetes. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. The Veteran has a current diagnosis of bilateral upper extremity neuropathy. He is service connected for diabetes. Service connection for diabetes was granted in an August 2002 RO rating decision. Service connection also since has been granted for associated peripheral neuropathy affecting his lower extremities, so as a complication of his diabetes. And he believes this also is the case with that affecting his upper extremities, hence, the reason to also service connect this additional neuropathy. The Board finds that the weight of the competent and credible evidence is at least in relative equipoise on the question of whether his bilateral upper extremity neuropathy, like that affecting his lower extremities, is proximately due to, the result of, or aggravated by his service-connected diabetes. In the January 2009 VA medical opinion, which weighs in favor of the claim, the VA examiner opined that the Veteran's bilateral upper extremity neuropathy is as likely as not secondary to his diabetes. This medical opinion, then, establishes the required cause-and-effect correlation between the Type II (adult-onset) Diabetes Mellitus and development of neuropathy, not just in the lower extremities, but also in the upper extremities as well. See Velez v. West, 11 Vet. App. 148, 158 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like in Wallin, that supporting medical evidence is generally, though not always, needed to associate the claimed condition with a service-connected disability). The Board finds that the January 2009 VA medical opinion is probative because it appears to be based on a factually accurate history, as the VA examiner was informed of the relevant evidence in this case. The January 2009 VA examiner gave an opinion that is consistent with the accurate facts found in this case. Moreover, there is no contrary, negative opinion of record. VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral upper extremity neuropathy have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating for Diabetes DC 7913 provides for a 10 percent rating for diabetes mellitus that is manageable by restricted diet only. A rating of 20 percent may be assigned for diabetes mellitus when insulin and a restricted diet or when an oral hypoglycemic agent and a restricted diet are required. A rating of 40 percent may be assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A rating of 60 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and the 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 rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and the regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three 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. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119. After a review of all the evidence in this Veteran's case, the Board finds that a preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 20 percent for service-connected diabetes, for the entire initial rating period. In the October 2007 VA diabetes examination, the Veteran reported that he was taking insulin and that his diabetes was not well-controlled. The VA examiner reported that the Veteran had not been hospitalized for diabetes and reported no episodes of hypoglycemic reactions or ketoacidosis. The VA examiner also assessed that the Veteran was required to follow a restricted diet, but that he was not restricted in his ability to perform strenuous activities. The VA examiner diagnosed Type 2 diabetes mellitus, and opined that the diabetes was poorly controlled. In an August 2008 private treatment record, the private examiner stressed the importance of regular exercise for treatment of diabetes. In the January 2009 VA diabetes examination, the Veteran reported that he was following a diabetic diet and also exercised. The Veteran also reported being hospitalized in July 2008 for hypoglycemia. The VA examiner reported that the Veteran was not required to follow a restricted diet, and that he was not restricted in his ability to perform strenuous activities. The VA examiner diagnosed Type 2 diabetes mellitus. In a March 2010 VA treatment record, the VA examiner informed the Veteran that he could help take care of himself by exercising. Based upon these findings, the evaluative framework of the assignment of a 20 percent rating for diabetes should remain in effect for the entire increased rating period. Despite the evidence showing the use of insulin, restricted diet, and hospitalization in July 2008 for hypoglycemia, the Board concludes that the medical evidence does not support a rating in excess of 20 percent for any period because for no period does the evidence show that the service-connected diabetes mellitus required regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In this regard, the October 2007 VA examiner opined that the Veteran was not restricted in his ability to perform strenuous activities. To the contrary, during a March 2010 consultation in a VA outpatient clinic he was actively encouraged to exercise regularly as a means of treating his diabetes and lessening the effects of it. In the August 2008 private treatment record, the private examiner stressed the importance of regular exercise for treatment of the diabetes. The Veteran alleges that, to the contrary, his activities in fact have been limited by symptoms of diabetes; however, "regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). In Camacho, it was held that the evidence must show that it is medically necessary for a claimant to avoid strenuous occupational and recreational activities. Here, the exact opposite is shown. The Veteran's diabetes has been found to require insulin, medication, and dietary restrictions, but not regulation of activity as evidenced by medical evidence that occupational and recreational activities have been restricted, as required for a higher rating of 40 percent under DC 7913. While he requires insulin injections and a restricted diet, as indicated, the evidence must exhibit "regulation of activities" to warrant the higher 40 percent rating. The record clearly shows his symptoms do not meet or more nearly approximate these criteria at any time during the increased-rating period. For these reasons, the Board finds that the criteria for an increased rating higher than 20 percent for his diabetes under DC 7913 have not been met for any period at issue. 38 C.F.R. §§ 4.3, 4.7, 4.119. Increased Rating for the Associated Diabetic Nephropathy The Veteran's service-connected diabetic nephropathy is rated pursuant to the criteria of DC 7541, which states that all toxic nephropathy should be rated as renal dysfunction. 38 C.F.R. § 4.115a, DC 7535 (2012). Renal dysfunction warrants a 0 percent rating with albumin and casts with history of acute nephritis; or, hypertension which is noncompensable under DC 7101. A 30 percent rating is warranted with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension which is at least 10 percent disabling under DC 7101. A 60 percent disability rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for a condition requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Under DC 7101, a 10 percent rating is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure of predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101 (2012). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, DC 7101. Prior to November 25, 2009 The Board finds that the evidence of record shows that, prior to November 25, 2009, the Veteran's service-connected diabetic nephropathy more nearly approximated constant albuminuria with some edema. In a June 2007 private treatment record, the private examiner reported edema. In a July 2007 private treatment record, the private examiner reported no edema and also no decreased urinary flow, discharge, dysuria, hematuria, or incontinence. In a September 2007 VA abdominal ultrasound, the VA examiner reported normal kidneys. In the October 2007 VA diabetes examination, the Veteran reported high blood pressure. The VA examiner reported no hypertension symptoms or complications. The Veteran's blood pressure was 160/80. The VA examiner also diagnosed diabetic nephropathy and reported that the Veteran's renal function was presently maintained and that he had very heavy proteinuria, indicating kidney damage from diabetes. The VA examiner also reported 1+ edema of the left ankle. A March 2008 VA treatment record reflected no edema of the extremities. A July 2008 reflected edema of the extremities. A July 2008 VA treatment record reflected no edema of the extremities. An August 2008 private treatment record reflected no edema of the extremities. In a January 2009 VA examination, the VA examiner reported trace edema in bilateral feet. The VA examiner diagnosed proteinuria (albuminuria). In an October 2009 private treatment record, the private examiner reported 2+right pedal edema and 2+ left pedal edema. The Board finds that the evidence of record shows that, prior to November 25, 2009, the Veteran's service-connected diabetic nephropathy more nearly approximated constant albuminuria with some edema. A thorough review of the record does not show that the Veteran's diabetic nephropathy has been manifested by persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion for the period prior to November 25, 2009. Testing conducted in September 2006 showed his BUN was 26 mg/dL, and that his creatinine was 1.2 mg/dL. Testing conducted in March 2007 showed his BUN was 14 mg/dL, and that his creatinine was 1.0 mg/dL. Testing conducted in June 2007 showed his BUN was 17 mg/dL, and that his creatinine was 1.0 mg/dL. Testing conducted in July 2007 showed his BUN was 26 mg/dL, and that his creatinine was 1.3 mg/dL. Testing conducted in September 2007 showed his BUN was 26 mg/dL, and that his creatinine was 1.2 mg/dL. Testing conducted in December 2007 showed his BUN was 21 mg/dL, and that his creatinine was 1.2 mg/dL. Testing conducted in May 2008 showed his BUN was 26 mg/dL, and that his creatinine was 1.2 mg/dL. Testing conducted in October 2009 showed his BUN was 39 mg/dL, and that his creatinine was 2.6 mg/dL. Nothing in the evidence of record otherwise indicates any anorexia, weight loss, lethargy, or limitation of exertion due to renal dysfunction for the period prior to November 25, 2009. In view of the foregoing, the Board finds that the Veteran meets or nearly approximates the criteria for a rating of 60 percent for his service-connected diabetic nephropathy, for the period prior to November 25, 2009. Increased Rating for the Bilateral Lower Extremity Peripheral Neuropathy Bilateral Lower Extremity Peripheral Neuropathy is not specifically listed in the rating schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). Here, the most closely analogous diagnostic code is DC 5821. DC 8521 provides ratings for paralysis of the external popliteal nerve. DC 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. The rating schedule does not define the terms "mild," "moderate," "severe," or "marked," as used in this diagnostic code to describe the degree of deformity of the foot. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 (2012). The Board notes that the term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Prior to January 12, 2009 Prior to January 12, 2009, the Veteran's left and right lower extremity peripheral neuropathies were manifested by mild incomplete paralysis. In a June 2007 private treatment record, the private examiner reported cranial nerves intact, with normal sensation. In a July 2007 private treatment record, the Veteran reported no numbness or muscle weakness. In the October 2007 VA diabetes medical examination, the Veteran reported numbness and tingling in the toes of each foot. The VA examiner reported sensory examination to vibration, light touch, and pinprick were diminished in the toes up to the distal foot area just above the toes. In a March 2008 VA treatment record, the VA examiner reported sensory examination of the feet was within normal limits. In the January 2009 VA diabetes medical examination, the Veteran reported symptoms of numbness and tingling in his feet, which had gotten progressively worse over the last four to five years. The VA examiner also reported decreased sensation to light touch and pinprick in the soles of the feet up to the ankles. After careful consideration, the Board finds that for the period prior to January 12, 2009, the Veteran's bilateral lower extremity peripheral neuropathy symptoms are best characterized as mild in their severity. While the Board accepts as credible the Veteran's statements that his bilateral lower extremity peripheral neuropathy causes numbness and tingling in his lower extremities, there are simply not enough objective findings to warrant a conclusion that his disability is moderate in nature. Neurological testing does not consistently show any abnormalities. The Veteran has normal muscle strength and tone in his lower extremities, with no evidence of atrophy, indicating the Veteran is able to use his lower extremities in a normal fashion, despite his complaints of numbness and tingling. He has a normal gait and is able to walk without assistive devices. Based upon these findings, and resolving all reasonable doubt in the Veteran's favor, the Board finds the assignment of a 10 percent rating for left and right lower extremity peripheral neuropathies, but no higher, is warranted for the increased rating period prior to January 12, 2009. 38 C.F.R. § 4.115a, DC 8521. Since January 12, 2009 Since January 12, 2009, the Veteran's left and right lower extremity peripheral neuropathies were manifested by no more than mild incomplete paralysis. In a January 2010 VA treatment record, the VA examiner reported he was unable to palpate dorsalis pedis and posterior tibial pulses (DP/PT pulses). In a February 2010 VA treatment record, the VA examiner reported no gross sensory motor deficits. In a March 2010 VA treatment record, the VA examiner reported peripheral pulses were present. In a separate March 2010 VA treatment record, the Veteran reported numbness in both legs. In an April 2010 VA treatment record, the VA examiner reported the DP/PT pulses were present and within normal limits. In a June 2010 VA treatment record, the VA examiner reported femoral and pedal pulses palpable bilaterally. In a July 2010 VA treatment record, the VA examiner reported femoral and pedal pulses palpable bilaterally. In a September 2010 VA treatment record, the VA examiner reported posterior tibialis pulses palpable bilaterally and that the examination was negative for numbness or weakness. In view of the foregoing, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his service-connected left and right lower extremity peripheral neuropathies for the period since January 12, 2009. The Veteran's bilateral lower extremity peripheral neuropathy symptoms are best characterized as mild in their severity. While the Board accepts as credible the Veteran's statements that his bilateral lower extremity peripheral neuropathy causes numbness and tingling in his lower extremities, there are simply not enough objective findings to warrant a conclusion that his disability is moderate in nature. Neurological testing does not consistently show any abnormalities. The preponderance of the evidence is against the assignment of any increased ratings as of January 12, 2009, and the claims for increase must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations also have been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for referral or assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular rating criteria contemplate the symptoms and impairment of the Veteran's service-connected diabetes and left and right lower extremity neuropathies. The service-connected diabetes rating criteria reasonably describe the Veteran's disability level and symptomatology. They account for his medication regimen (insulin), as well as his restrictions in diet. The service-connected bilateral lower extremity neuropathy rating criteria reasonably describe the Veteran's disability level and symptomatology. They account for his pain, numbness, and weakness. Because the schedular rating criteria is adequate to rate the Veteran's service-connected disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). The Board acknowledges the Veteran's assertion that he experiences impairment as a result of his diabetes. Specifically, the Veteran has reported pain and the inability to perform certain tasks. He reports that he is unable to perform strenuous activities. The Veteran, as a lay person, is competent to provide such evidence of how his diabetes affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board has specifically considered the Veteran's statements and while the Board finds the Veteran credible, VA must consider only the rating criteria and other applicable regulations to rate a disability. Massey v. Brown, 7 Vet. App. 204, 208 (1994). ORDER Service connection for bilateral upper extremity peripheral neuropathy is granted. An increased disability rating in excess of 20 percent for diabetes is denied. An increased disability rating for left lower extremity peripheral neuropathy of 10 percent for the period prior to January 12, 2009 is granted, subject to the laws and regulations governing the award of monetary benefits; whereas an increased disability rating for left lower extremity peripheral neuropathy in excess of 10 percent for the period since January 12, 2009, is denied. An increased disability rating for right lower extremity peripheral neuropathy of 10 percent for the period prior to January 12, 2009 is granted, subject to the laws and regulations governing the award of monetary benefits; whereas an increased disability rating for right lower extremity peripheral neuropathy in excess of 10 percent for the period since January 12, 2009, is denied. REMAND The accredited representative states that the report of the October 2007 VA examination for compensation purposes for hypertension is inadequate for rating purposes. Unfortunately, another remand is resultantly required. Although the Board sincerely regrets the additional delay, it is necessary to ensure there is a complete record upon which to decide the Veteran's claim for service connection for hypertension, including as due to service-connected disabilities, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist him in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In October 2007, the Veteran was afforded a VA examination for compensation purposes to address the nature and etiology of his hypertension. The VA examiner opined that hypertension has never been found to be caused by diabetes; however, the VA examiner did not provide any rationale for that summary conclusion. He also made no findings as to whether the Veteran's hypertension was increased in severity beyond its natural progression on account of his Type II Diabetes Mellitus, meaning aggravated by it, or is related to and/or increased in severity beyond its natural progression because of his other service-connected disabilities. Two opinions, not just one, are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b) . Clinical documentation dated after September 2010 also is not of record. VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, this claim of entitlement to service connection for hypertension, including as due to service-connected disabilities, is REMANDED for the following additional development and consideration: 1. Contact the Veteran and request that he provide information as to all evaluation or treatment of his hypertension since September 2010, including the names and addresses of all medical health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran's hypertension, not already of record, for incorporation into the file. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. So make as many attempts to obtain identified records as are necessary according to this VA regulation, depending on who has custody of them. Also appropriately notify the Veteran if unable to obtain any identified records. 38 C.F.R. § 3.159(e) (2012). 2. Upon receipt of all additional records and association of these additional records with the claims file for consideration, schedule the Veteran for another VA compensation examination for additional medical comment concerning the nature and etiology of his hypertension, but especially insofar as the likelihood (very likely, as likely as not, or unlikely) it is proximately due to, the result of, OR aggravated by his service-connected disabilities, especially his Type II Diabetes Mellitus. The prior VA examiner only commented on causation, not also on aggravation. So even if the current examiner agrees with the prior examiner that the Type II Diabetes Mellitus did not cause the Veteran's hypertension, there still needs to be comment, as well, concerning whether the diabetes alternatively is aggravating the hypertension, and by this the Board means chronically worsening it beyond its natural progression so does not include a mere temporary or intermittent exacerbation. All diagnostic testing and evaluation needed to make this important determination should be performed. It also is essential the examiner discuss the underlying medical rationale of the opinion, not instead merely state the opinion, so if necessary cite to specific evidence in the file supporting conclusions and explain the basis of them. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly explain why an opinion cannot be provided without resorting to speculation. So merely saying he/she cannot comment will not suffice. 3. Then readjudicate this claim of entitlement to service connection for hypertension, including as due to service-connected disabilities, in light of this and all other additional evidence. If this claim continues to be denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is his responsibility to report for any scheduled examination and to cooperate in the development of this claim, as the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs