Citation Nr: 1324981	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  10-05 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity prior to July 17, 2009; and to a disability evaluation in excess of 20 percent from July 17, 2009.  

2. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity prior to July 17, 2009; and to a disability evaluation in excess of 20 percent from July 17, 2009.  

3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected Type II diabetes mellitus (hereinafter "DM"); or alternatively, as secondary to service-connected posttraumatic stress disorder (hereinafter "PTSD").  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to December 1970, including service in the Republic of Vietnam (hereinafter "Vietnam") from November 1969 to December 1970.  

This matter initially came to the Board of Veterans' Appeals (hereinafter "Board") on appeal from a September 2008 rating decision, by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Detroit, Michigan, which granted service connection for peripheral neuropathy, mild, right lower extremity; and peripheral neuropathy, mild, left lower extremity; and assigned initial 10 percent evaluations, effective September 25, 2007, for each extremity.  

Also on appeal is a rating decision, dated in August 2009 and issued in September 2009, which denied entitlement to service connection for erectile dysfunction; and which granted increased evaluations to 20 percent for the service-connected peripheral neuropathies of the lower extremities, effective July 17, 2009, for each extremity.  The Board notes, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, the claim has remained on appeal.  

In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"). A transcript of the hearing is associated with the record.  

In January 2013, the Board remanded the case to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, DC in order to obtain outstanding VA treatment records and to schedule a VA examination and medical opinion.  The post-remand record shows substantial compliance with the Board's directive.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence.  Additional, pertinent medical evidence was added to the file in Virtual VA in February 2013, which was considered by the RO in the April 2013 supplemental statement of the case (hereinafter "SSOC").  As such, the Board will proceed to consider the appeal on the merits.  See 38 C.F.R. § 20.1304(c) (2012).  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished.  

2. Prior to July 17, 2009, the Veteran's peripheral neuropathy of the left lower extremity was productive of a disability picture that more nearly approximated mild incomplete neuritis of the sciatic nerve.  

3. Since July 17, 2009, the Veteran's peripheral neuropathy of the left lower extremity is productive of a disability picture that more nearly approximates moderately severe incomplete neuritis of the sciatic nerve.  

4. Prior to July 17, 2009, the Veteran's peripheral neuropathy of the right lower extremity was productive of a disability picture that more nearly approximated mild incomplete neuritis of the sciatic nerve.  

5. Since July 17, 2009, the Veteran's peripheral neuropathy of the right lower extremity is productive of a disability picture that more nearly approximates moderately severe incomplete neuritis of the sciatic nerve.  

6. The evidence of record does not show that the Veteran's current erectile dysfunction is related to his active service or to a service-connected disability, to include DM or PTSD.  


CONCLUSIONS OF LAW

1. Prior to July 17, 2009, the criteria for an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the left lower extremity were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (hereinafter "DC") 8620 (2012).  

2. Since July 17, 2009, the criteria for the assignment of a 40 percent disability rating, but not more, for the service-connected peripheral neuropathy of the left lower extremity are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, DC 8620 (2012).  

3. Prior to July 17, 2009, the criteria for an initial evaluation in excess of 10 percent for the service-connected Veteran's peripheral neuropathy of the right lower extremity were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, DC 8620 (2012).  

4. Since July 17, 2009, the criteria for the assignment of a 40 percent disability rating, but not more, for the service-connected peripheral neuropathy of the right lower extremity are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, DC 8620 (2012).  

5. Erectile dysfunction is not proximately due to or aggravated by a service-connected disability, and was not incurred or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App.").  

The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement."  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim.  See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'"  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  

Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991).  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Thus, a layperson is competent to report on the onset and continuity of symptomatology.  See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.   See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

Duties to Notify and Assist

The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).  

With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

Pre- and post-adjudication VCAA letters dated in July 2008, August 2008, January 2009, May 2009, July 2009, October 2009, January 2013 and February 2013, explained the evidence necessary to substantiate the claims for service connection and for increased ratings, and informed the Veteran of his and VA's respective duties for obtaining evidence.  

Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104  and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal.  

In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The July 2008, August 2008, January 2009 and May 2009 letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  Although letters sent after the initial adjudication generally represent a timing error (see Pelegrini, 18 Vet. App. 112), timing errors can be effectively "cured" by providing the necessary additional notice and readjudicating the claim in a statement of the case (hereinafter "SOC") or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  The AMC readjudicated the claims in an April 2013 SSOC.  Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains in-service and post-service medical treatment records, include private and VA treatment records from practitioners the Veteran has identified, and reports of VA examinations (also known in the record as Disability Benefits Questionnaire or "DBQ") (March 1971, March 2006, July 2008, August 2008, July 2009, July 2011 and March 2013).  With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  These VA examination reports generally reflect review of the claims file, examination of the Veteran, and clear description and evaluation of his neurological and genitourinary disabilities.  In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issues decided hereinbelow.  

Moreover, since the inception of his appeal, the Veteran has been given ample opportunity to provide additional medical and lay evidence to substantiate his claims for service connection and increased ratings.  However, the Veteran has failed to identify any additional evidence, or to complete any VA Form 21-4142, Authorization and Consent to Release of Information to the Department of Veterans Affairs, to allow VA access to gather any additional evidence.  In fact, in December 2009, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he reported that all of his care for his claimed conditions had been provided by the VA Gaylord Community-Based Outpatient Clinics (hereinafter "CBOC") and the Saginaw, Michigan VA Medical Center (hereinafter "VAMC").  Hence, further attempt to obtain any outstanding records is unnecessary at this time.  

At the September 2012 hearing, the undersigned VLJ and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the claims, including identifying relevant types of evidence.  Overall, the hearing was legally sufficient and the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012).  


The Merits of the Claim-Increased Ratings

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the Court distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Accordingly, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See id. at 126-27.  Moreover, the Board notes, the Court held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.  38 C.F.R. § 4.1.  If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes.  38 C.F.R. § 4.2.  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207-08 (1994).  When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms.  38 C.F.R. § 4.13.  It must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  Finally, in view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.  

All disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012).  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would over-compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).  

All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  However, "disability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition."  Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010).  Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms."  Id.  In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Id.  However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions.  Id.  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that 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).  

The Veteran's peripheral neuropathy of the left and right lower extremities were assigned separate 10 percent schedular disability ratings under 38 C.F.R. § 4.124a, DC 8620, prior to July 17, 2009, concerning neuritis of the sciatic nerve, which is evaluated as incomplete paralysis.  His peripheral neuropathy of the right and left lower extremities are assigned separate 20 percent schedular disability ratings under 38 C.F.R. § 4.124a, DC 8620, from July 17, 2009.  

As directed by 38 C.F.R. § 4.124a, DC 8620, neuritis of the sciatic nerve, which is evaluated as incomplete paralysis, is assigned a 10 percent rating for mild incomplete paralysis; a 20 percent disability rating for moderate incomplete paralysis; a 40 percent disability rating for moderately severe incomplete paralysis; a 60 percent disability rating for severe incomplete paralysis with marked muscular atrophy; and an 80 percent disability rating for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2012).  Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a (2012).  

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by these organic changes will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2012).  

The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012).  

Prior to July 17, 2009

After a full review of the record, and as further explained below, the Board finds that the preponderance of the evidence weighs against the assignment of an initial evaluation in excess of 10 percent for peripheral neuropathies of either lower extremity prior to July 17, 2009.  

As noted, in September 2008 the Veteran was granted service connection for peripheral neuropathy of the lower extremities, and assigned bilateral evaluations of 10 percent, under 38 C.F.R. § 4.124a, DC 8620, which pertains to neuritis of the sciatic nerve.  The grant of service connection was effective September 25, 2007, the date of receipt of the claim for benefits.  He filed an NOD with that determination in October 2008, and requested a higher initial evaluation for his service-connected bilateral peripheral neuropathy disabilities.  

Turning to the evidence, the service treatment records are without findings of or treatment for any peripheral neuropathy of the lower extremities.  

Starting in August 2007, a VA treatment record shows the Veteran complained of bilateral heel numbness that increased with walking and bothered him at night.  He was assessed with DM with neuropathy.  An April 2008 VA treatment record reflects findings of cold left leg, intermittent pain in the legs that woke him up at night, and giving way of the knee; however, the Veteran denied injury or muscle cramps.  On physical examination the left knee was found to be slightly tender posteriorly on Lachman's, but the examination was otherwise found to be normal.  The right side was tender laterally during varus/valgus maneuvers, and vascular examination revealed slightly decreased pulses/capillary refill compared to the right foot.  The Veteran was diagnosed with DM with neuropathy, and with left knee pain.   

In July 2008, the Veteran underwent electromyography (hereinafter "EMG") testing after complaining of multiple leg symptoms, including leg pain, for approximately 2 years.  The private physician, "Dr. Gietzen," noted the Veteran had been diagnosed with DM approximately three years prior, and complained of tingling and pain in his feet, especially with walking.  The Veteran also complained of swelling at the ankles and cramping pain in his legs, which was worse with standing for long periods of time; but denied experiencing a burning sensation.  He reported an easing of symptoms when he elevated his feet.  On examination, motor testing and vibratory sense were described as normal in both lower extremities, but sensory testing revealed decreased perception to light touch and temperature from the knees distally.  Deep tendon reflexes were observed to be 2 out of 4, and symmetric in both lower extremities.  Dr. Gietzen noted that nerve conductive studies were performed on both lower extremities, which revealed mildly reduced latencies in all motor and sensory nerves tested in the 39 to low 40 meter per second range.  The left peroneal motor nerve was observed to be slower than other nerves, as well as having reduced amplitude.  F-waves were characterized as normal.  EMG testing was performed on both lower extremities, and all muscles tested were normal.  Significantly, Dr. Gietzen summarized that this was a mildly abnormal study due to borderline slowing of both motor and sensory nerves in a diffuse pattern, as well as a reduced peroneal nerve signal on the left.  Dr. Gietzen concluded that these findings were consistent with a peripheral neuropathy and likely were due to the Veteran's underlying DM.  Dr. Gietzen hypothesized that most of the Veteran's symptomatology was due to a small fiber diabetic neuropathy, which was not testable by EMG study and could have been confirmed with a skin biopsy.  

In July 2008, the Veteran underwent a VA peripheral nerves examination, during which the Veteran described symptoms of pain, weakness and swelling in both legs, from knees to feet, with a chronic and gradual date of onset of 2007.  He complained of a gradual soreness in both legs that started in the lower legs and then progressed to include the upper legs.  He also started to notice cramps throughout his legs, but the location of the cramps varied and was worse at night.  The Veteran indicated that he tried to walk for exercise, but developed pain from bilateral hips to the lower legs.  He scored his pain as a level 7 to 8 on a scale of 1 to 10.  He noted that sitting and medication improved his pain to a 4 to 5 on a scale of 1 to 10.  He characterized the pain as a burning/aching/stinging pain that started in the buttocks and traveled down to the feet.  It was worse with walking, and caused cramping pain in the lower legs to the ankles.  The Veteran indicated that he felt his shoes were too tight, and noted that his feet swelled.  He reported that his feet were swollen in the morning and became worse with standing and walking, for which he took Ibuprofen, elevated and iced his feet.  He denied any symptoms when his feet were swollen other than pain, and denied any trauma in his legs and feet.  The Veteran also reported that he noticed weakness in both his legs with walking and/or riding a bike, which would vary in severity each day.  He indicated that he could feel a difference after 15 to 20 minutes, so he went for shorter, more frequent walks versus long walks.  When his legs became weak, he would also have swelling in his feet and pain in his legs.  

The Veteran denied a history of hospitalization or surgery, a history of trauma to the nerve, and a history of neoplasm.  Symptoms varied in location of the legs and severity, but both legs from the feet experienced weakness, both legs from the thighs down to the feet experienced stiffness, and both feet experienced pain and numbness.  He also experienced tingling from his thighs to his feet.  It was noted that the Veteran had a significant history of being a diabetic and having high blood pressure.  

On physical examination, all muscle function of the upper and lower extremities was described as normal.  Sensory function report revealed sensory dysfunction, in the form of decreased light touch on the plantar surfaces of both feet, which affected the sural and peroneal nerves, but normal position sense.  On peripheral nerve detail reflex examination, there were findings of normal plantar flexion, bilaterally, but slightly diminished left knee reflex and left ankle reflex.  The Veteran was not observed to have abnormal muscle tone or bulk, muscle atrophy, tremors, ticks or other abnormal movements.  Also, joint function was not affected by the nerve disorder, and gait and balance were described as normal.  Other significant findings included observations that walking on toes caused a pulling pain in the Achilles area.  The examiner noted the July 2008 private EMG study, and an April 2008 X-ray study of the left knee, which revealed an impression of degenerative changes without evidence for acute fracture or subluxation.  

The Veteran was diagnosed with mild peripheral neuropathy in both lower extremities secondary to DM.  Problems associated with the diagnosis included pain, weakness and swelling in both legs from the knees to the feet.  The examiner noted there was nerve dysfunction, neuritis and neuralgia present, but no paralysis.  It was noted that the Veteran was unemployed, and that he indicated his reason for being unemployed was because of a lack of opportunity in home repair, his chosen profession.  The examiner noted the peripheral neuropathy had no effect on the Veteran's ability to feed, bathe, dress or toilet; mild effect on his ability to travel and shop; and moderate effect on his ability to exercise, play sports, do chores and recreate.  

In December 2008, the Veteran underwent a VA neurology consult after complaining of pain and numbness involving the lower extremities since 2007.  He reported that he had cramping in his legs, along with pain in the plantar metatarsal areas of his feet and in the heels.  Walking induced pain in the feet, and his feet and legs were described as sore.  He also had numbness in his feet, although the strength of his extremities was characterized as good and his balance and gait were normal.  Musculoskeletal examination revealed no muscle atrophy in the lower extremities; full range of motion without pain; no joint deformities; no visible or palpable abnormalities; no pain on palpation of the extremities; negative Tinel's sign and negative straight leg raising test.  Neurological examination revealed negative pinprick and light touch sensory findings; no Babinski sign; grade 2 tendon reflexes; bilateral Achilles reflexes; normal muscle power; no bradykinesia or akinesia; normal stance; normal Romberg test; normal gait; normal heel toe walk; and normal tandem gait.  Sensory examination revealed negative joint position sensation; vibration sensation; and pinprick and light touch sensation.  The Veteran was diagnosed with mild chronic diffuse sensory motor polyneuropathy involving the upper and lower extremities since 2007, with an etiology of diabetic peripheral neuropathy.  

As noted, in adjudicating a claim the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such lower extremity numbness and pain.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran to be credible in his reports of the symptoms he experiences.  However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned 10 percent ratings for this period of the appeal.  Here, the Veteran did not argue that he experienced an imbalance in gait, or any type of paralysis due to his peripheral neuropathy of the lower extremities, which might have indicated an increase in the severity of the disabilities to show moderate neuritis warranting a 20 percent disability rating.  

Moreover, even if his statements were accorded any probative value, the Board finds the VA examination reports and treatment records to be the most probative evidence of record for this period of the appeal.  These records show that the Veteran has consistently reported mild symptoms of pain and numbness in his feet, but he also indicated that his neuropathy had no effect on his ability to feed, bathe, dress or toilet; mild effect on his ability to travel and shop; and moderate effect on his ability to exercise, play sports, do chores and recreate.  The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Thus, the Board accords the July 2008 private EMG results, which revealed a mildly abnormal study due to borderline slowing of both motor and sensory nerves in a diffuse pattern, as well as a reduced peroneal nerve signal on the left, the greatest probative value insofar as the study appears to be the most objective evidence of record as to the severity of the Veteran's disabilities and are supported by the July 2008 examination and December 2008 consult findings.  

Since July 17, 2009

The Board finds after careful consideration of the pertinent evidence of records that 40 percent disability ratings are assignable for peripheral neuropathies of both lower extremities, for the period since July 17, 2009.  

As noted, in August 2009, the RO granted the Veteran's request for initial increased ratings for his bilateral peripheral neuropathy of the lower extremities, and assigned 20 percent ratings, effective July 17, 2009, the date of the VA examination that revealed the Veteran was entitled to higher disability evaluations for his legs.  

In July 2009 the Veteran underwent a VA DM examination.  Here, the Veteran reported symptoms of numbness and pain in his feet for the past two years, for which he was taking Nortriptyline and Tramadol, which was effective.  He described the symptoms of his peripheral neuropathy as including loss of sensation and pain in both of his feet.  On physical examination of the lower extremities, the examiner observed normal temperature and color of both lower extremities, without trophic changes or ulcers.  Dorsalis pedis pulses and posterior tibiela pulses were also characterized as normal in both lower extremities. Neurological testing revealed findings of normal patellar reflexes and normal Babinski signs, but impaired Achilles reflexes.  Left sensory loss was described as occurring in a stocking like pattern from the level of the ankle to the toes, with decreased light touch, pain and vibration sensation.  Right sensory loss was also described as occurring in a stocking like pattern from the level of the ankle to the toes, with decreased light touch, pain and vibration sensation.  

In specifically evaluating the Veteran's peripheral neuropathy, the VA examiner noted that there was pain and numbness in the feet, but that there was full muscle strength of all muscle groups of the lower extremities bilaterally.  The sensory function report showed findings of decreased vibration, pain and light touch in the lower extremities at the toes to the level of the ankle, in a stocking like distribution pattern.  However, position sense was described as normal.  The examiner noted that the Veteran experienced poly-neuropathy, and that it was not possible to identify a single nerve or group of nerves, though the L4 to S1 dermatomes were affected.  No nerve conduction studies or EMG studies were performed; however, the Veteran had a "Michigan Neuropathy Screening" score of 3.  The report indicated that a score greater than 2 indicates neuropathy with both a high specificity (95 percent) and sensitivity (80 percent).  Also, the "United Kingdom screening test" showed scores of 5 on part I, indicating moderate neuropathy; and 6 on part II, also indicating moderate neuropathy.  The Veteran had positive phalen's and Tinel's tests bilaterally.  

The examiner indicated that the Veteran's bilateral diabetic poly-peripheral neuropathy of the lower extremities caused nerve dysfunction and neuritis, but not paralysis or neuralgia in the Veteran.  It was noted that he was no longer employed since retiring in 2006 due to age or duration of work.  The examiner noted that the Veteran's peripheral neuropathy had an effect on his usual daily activities, to include no effect on travelling or toileting; mild effect on grooming, dressing, bathing, feeding, recreation, exercise, shopping and chores; and a moderate effect on sports.  

In December 2009 the Veteran spouse provided a statement that included her observations of the Veteran's peripheral neuropathy disabilities.  Specifically, she noted that he experienced pain in both legs that has caused him to stumble on clear, flat surfaces, on several occasions.  Also in December 2009, the Veteran's daughter provided a statement, which included observations of the Veteran experiencing so much pain and cramping in his legs that she would try to soothe them by rubbing them.  She also noted that the Veteran experienced a great deal of difficulty outside when it was cold or damp, and that his feet got cold easily.  She reported that the Veteran stumbled and limped at times due to his foot and leg cramps.  

In his VA Form 9, Appeal to Board of Veterans' Appeals, received in February 2010, the Veteran argued that the July 2009 VA examiner did not take into account the fact that for a few hours in the morning he was extremely unstable, off-balance and in pain, and required assistance in getting around.  The Veteran noted that he was almost completely unemployable due to his peripheral neuropathy disabilities, and argued that under 38 C.F.R. § 4.10, his case should be evaluated in consideration of the ability of his body to function under the ordinary conditions of daily life, including employment.  

In May 2011, the Veteran was treated for right foot pain for eight weeks, initially thought to be gout but less likely so.  He denied experiencing an injury but felt that his legs were cold.  VA X-ray studies of the right foot were negative.  In June 2011 a bone scan was performed at a VA medical facility, which revealed an impression of a triple phase positive bone scan in the region of the right midfoot which was nonspecific and could represent a posttraumatic injury, an infectious process, or an inflammatory arthropathy/gout.  Clinical correlation was recommended.  Also, a nonspecific focal area of uptake in the right inter-trochanteric region required clinical correlation and further evaluation with plain radiographs or cross-sectional imaging was recommended as clinically indicated.  

A June 2011 VA podiatry consult reflects the Veteran was treated for pain and swelling in his right foot.  The Veteran indicated that he did not recall injuring his right foot.  The practitioner noted that there was no redness or warmth in the area, or swelling during the examination.  Dermatological evaluation indicated there was no damage to tissue and the Veteran had warm, supple skin, with only mild keratosis at the metatarsophalangeal joints.  The practitioner noted the Veteran had undergone a bone scan that revealed no significant bone spurring.  Neurological systems were described as grossly intact and there was no significant swelling observed.  The Veteran was assessed with DM and right foot pain, and it was noted that "Charcot" could not be ruled out in the right foot.  The Veteran was prescribed a short-term walker to use over the next 2 to 4 weeks, and was issued an "una" boot.  It was also recommended that he keep his foot wrapped in an ace bandage.  

Concurrently, in June 2011 the Veteran had a VA neurology clinic visit during which he described pain in the bilateral knees and ankles.  It was noted that walking induced exacerbation of the pain in his knees and ankles.  He had aching pain involving the proximal dorsal aspect of the right foot over the extensor hallucis tendon and the adjacent proximal metatarsal areas 2 and 3 of the right foot.  Flexion and extension of the right foot produced pain in these regions, especially the extensor hallucis tendon.  However, the strength of all 4 extremities was described as good, and his balance and gait were normal.  No muscle atrophy was observed on physical examination.  The right foot exhibited full flexion, extension, and inversion and eversion actively and passively.  Active and passive flexion and extension of the right foot produced mild pain in the extensor hallucis tendon overlying the proximal portion of the right foot and the adjacent superior and medial aspects of occipital metatarsals one and 2 of the right foot.  There was mild pain on palpation over these regions, especially on palpation over the extensor hallucis tendon.  Both knee joints exhibited full active and passive flexion-extension with production of mild aching pain in the anterior aspects of the ipsilateral knees and these maneuvers.  There was no pain on palpation over the knees, and there was full active range of motion of the other joints of the extremities, without pain.  There were no joint deformities noted and no visible or palpable abnormalities.  There was also no pain on palpation over other portions of the extremities.  Tinel's sign was negative and straight leg raising test was negative.  Motor examination revealed findings of normal muscle tone, without adventitious movements (fasciculations, chorea, athetosis, tremor, dystonia).  There was no Babinski sign.  The tendon reflexes were grade 2, except for grade 1 bilateral Achilles reflexes.  The muscle power for the lower extremities was grade 5.  There were no bradykinesia or akinesia.  Stance was negative, Romberg test was negative and gait was negative, although the Veteran was unable to stand or walk on his toes, due to pain in the proximal dorsal portion of the right foot.  He walked on his heels slowly, with slight instability to left and right, with decreased dorsiflexion of the feet.  His tandem gait was normal, his joint position sensation was normal, his vibration sensation was normal, and his pinprick and light touch sensation was normal.  The Veteran was diagnosed with mild chronic diffuse sensorimotor polyneuropathy involving the upper and lower extremities since 2007.  The etiology was a diabetic peripheral neuropathy.  

A VA treatment record, dated in August 2011 indicates the Veteran was treated for complaints of pain in the right lower extremity with swelling.  He reported that there were some days that he could not walk due to his right foot discomfort.  

In a VA Form 646, Statement of Accredited Representative in Appealed Case, dated in April 2012, the Veteran's representative argued that the Veteran's symptoms of peripheral neuropathy in the lower extremities were much more severe than his most recent examination indicated, and requested the Veteran undergo a new VA examination to evaluate the severity of the Veteran's disabilities.  

A September 2012 VA treatment record shows the Veteran was found to have an abnormal "at risk" foot examination.  On dermatologic examination, both the right and left feet were observed to be normal, and the dorsalis pedis pulses and posterior tibial pulses of both the right and left feet were found to be normal musculoskeletal examination showed no deformity present, but neurological examination showed bilaterally abnormal foot monofilament.  

In September 2012, the Veteran testified that he experience incomplete paralysis below his knees that was moderately severe.  He indicated that his peripheral neuropathy impaired his daily activities due to symptoms of pain, weakness, numbness and possible poor circulation, which had caused him to stumble frequently, although he denied falling.  He noted that he used a walking stick whenever he went outside.  His representative noted that on examination, the Veteran's posterior lower pulses were absent bilaterally.  

Most recently, a VA diabetic sensory-motor peripheral neuropathy examination was conducted in March 2013.  Here, the examiner noted a history of peripheral neuropathy since 2007/2008, and symptoms of numbness in his feet, and weakness in his legs and knees, for which the Veteran had been treated with various medications.  The Veteran described an increase in his symptomatology, including soreness and stiffness in the hips and knees, and weakness in the knees, which had caused him to stumble often.  He noted that he sometimes used a walker and a cane during the day, though not often, and that he would carry his cane with him when he went for walks just in case.  He indicated that he was treated by a neurologist "Dr. Pick," in 2011, and was told that his neuropathy was causing generally weakness in his legs and knees.  He reported that he was told his condition would get worse and not better and that Dr. Pick changed the dosage of his medication and prescribed support hosiery to counteract the effects of the degradation of his condition; however, he was told to discontinue them because his problem was not felt to be circulatory.  The Veteran reported that he believed his condition had gotten worse because he used the cane or walker on a more regular basis, as many as three times a day when he arose in the morning and in the middle of the day, or late in the day when he moved too much and could feel weakness in his legs.  The Veteran indicated that he used his cane for balance, and that he carried it with him every day.  He reported that his right leg seemed weaker than his left, although sometimes his left leg felt weaker.  The Veteran noted that Dr. Pick indicated the Veteran was favoring one leg over the other.  He described current symptoms of pain and aching in the joints of his legs, and that his knees felt like they would give way.  He also reported symptoms of numbness in his feet, though when he elevated them the numbness went away.  He claimed his feet only felt warm when he soaked them in a heater tub 4 to 5 times a day.  The Veteran also claimed that his entire feet, including the heel and toes hurt.  He reported that this had been constant for the past few years, and affected his daily activities because it cut out his walking and limited his activities.  He noted that he could only walk an eighth of a mile per day while using his cane or walker.  

On physical examination, the examiner observed the Veteran had constant moderate pain and moderate numbness in the lower extremities; but no intermittent pain, paresthesias and/or dysesthesias in the lower extremities.  On neurologic examination, the Veteran exhibited normal strength in bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion.  However, he had decreased knee and ankle deep tendon reflexes bilaterally; decreased light touch/monofilament testing; decreased vibration sensation; decreased cold sensation; and absent position sense in the bilateral lower extremities.  Based on these findings the examiner evaluated the Veteran with moderate incomplete paralysis of the sciatic nerve of both lower extremities.  The examiner noted that while being examined, the Veteran was able to get in and out of a chair, and onto the examination table without difficulty, had normal gait walking swiftly without difficulty, and brought no cane or walker with him to the examination.  Also, EMG testing performed concurrently with the VA examination revealed evidence that was consistent with mild to moderate peripheral polyneuropathy mainly with sensory demyelination and sensory axonal loss, most likely secondary to DM.  The examiner noted that for sensory polyneuropathy, the lower extremities were more severe than the upper extremities.  The examiner indicated that the Veteran's diabetic peripheral neuropathy impacted his ability to work, due to the fact that he had to avoid prolonged walking, climbing and safety sensitive positions such as working from heights due to his lower extremity disabilities.  The examiner reviewed X-ray studies, dated in March 2013, which showed normal osseous structures of the right and left knees; normal osseous structures of the right ankle with small dorsal calcaneal spur; and normal osseous structures of the left ankle with small plantar calcaneal spur.  The examiner indicated that a July 2011 hip X-ray also showed an impression of osteoarthritis in both hip joints.  

In a June 2013 Informal Hearing Presentation, the Veteran's representative argued that the Veteran's EMG study was more revealing of his condition than his reported or observable symptoms, and that his prescribed prosthetics is evidence that he meets the criteria for a rating reflective of moderate symptoms.  

The Board finds the Veteran's testimony, and the written testimony of his spouse and daughter to be credible observations that he currently experiences symptoms of pain and numbness in his lower extremities, and that he is having more difficulty walking as a result of his service-connected disabilities.  As noted, the Veteran and his family are competent to give evidence about what they observe or he experiences.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran's contention that his symptoms have caused him to have difficulty walking to be supported by the clinical record.  As noted, in May 2011 and June 2011 the Veteran was treated for pain in his right foot that impaired his ability to walk to such a degree that he required the use of a walker and boot.  Moreover, the March 2013 VA examiner indicated that the Veteran's diabetic peripheral neuropathy impacted his ability to work, due to the fact that he had to avoid prolonged walking, climbing and safety sensitive positions such as working from heights due to his lower extremity disabilities.  

The Board recognizes that for this period of the appeal the VA examiners have consistently characterized "moderate" peripheral neuropathies.  Although this evidence indicates a less severe disability picture, the Board nonetheless finds, by resolving all doubt in the Veteran's favor, that the evidence of record overall, particularly the Veteran's complaints of impaired mobility, which are confirmed by treatment records in 2011, in addition to pain, are found to more nearly approximate "moderately severe" symptoms of peripheral neuropathy.  See 38 C.F.R. § 4.123, 4.124a.  

The Board correspondingly finds that this evidence of record demonstrates a disability picture inconsistent with "severe" peripheral neuropathy with marked muscular atrophy, as neither the Veteran has argued, nor has the clinical record shown, any muscular atrophy whatsoever.  Furthermore, as noted, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  In this case, although it is unclear if the Veteran's joint and movement problems are related to his peripheral neuropathies, the Board finds that these symptoms raise the level of impairment he experiences in his lower extremities to that of "moderately severe."  

For these reasons, 40 percent disability ratings, but not higher, are assignable for peripheral neuropathies of both lower extremities, for the period since July 17, 2009.  See 38 C.F.R. § 4.124a, DCs 8620; see also 38 C.F.R. § 4.123.   

Extraschedular Consideration

The Board's findings above are based on schedular evaluation.  Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  

To afford justice in exceptional situations, however, an extraschedular rating may also be provided.  38 C.F.R. § 3.321(b).  The Board may determine, in the first instance, that a veteran has not presented evidence warranting referral for extraschedular consideration, provided that it articulates the reasons or bases for that determination.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  This determination follows a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

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, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule.  Therefore, the assigned schedular evaluation is adequate and no referral is required.  Id.  

If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  at 115-16.  

If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the case be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating.  Id.  

In the instant case, as explained in detail above, the Veteran's peripheral neuropathy of the lower extremities consisting of a disability picture involving pain and weakness primarily involving decreased ability to walk unaided.  This disability picture is reasonably described by the applicable schedular rating, and it does not present an usual or exceptional disability picture.  Accordingly, referral for extraschedular consideration is not in order.  See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 115.  

As a final matter, entitlement to a total disability rating based on individual unemployability (hereinafter "TDIU"), is an element of all appeals of an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In an April 2010 rating decision, the RO granted entitlement to a TDIU rating, effect May 1, 2009, the first day following the month of April 2009, since the Veteran reported that he had been unemployed since April 2009.  Thus any development or consideration under Rice is moot.  

The Merits of the Claim-Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability.  In the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  

If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In the Veteran's case, since his claim for service connection for erectile dysfunction does not involve a chronic disease listed in 38 C.F.R. § 3.309(a), he cannot benefit from continuity of symptomatology to establish service connection.  Also, he has at no time alleged that he experienced erectile dysfunction continuously since service, thus the pertinent provisions under the Walker holding do not apply.  

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).  

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b), effective October 10, 2006.  See 71 Fed. Reg. 52,744-52,747 (September 7, 2006).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  

A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998).  See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability).  

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).  

The available pre-service treatment records clearly show treatment for "gross hematuria," "non-specific urethritis," "acute glomerulonephritis," and "cystitis." A Veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003).  The burden is on VA to rebut the presumption soundness, by clear and unmistakable evidence, both that the disorder at issue pre-existed service, and was not aggravated by service.  VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  As will be discussed below, there is no clear and unmistakable evidence to show that the Veteran's erectile dysfunction preexisted his service, and was not aggravated by service.  

The service treatment records indicate on pre-induction history and examination, the Veteran reported experiencing "high blood pressure," "frequent or painful urination," "kidney stone or blood in urine," "depression or excessive worry," and "bed wetting."  It was noted on examination that the Veteran had kidney complications at the age of 15, and had blood in his urine and non-specific urethritis prior to his induction.  A June 1969 treatment record reflects complaints of kidney trouble and difficulty urinating.  The service treatment records are otherwise without findings related to the genitourinary system including erectile dysfunction.  

Significantly, the Veteran has described the date of onset of his erectile dysfunction as occurring post-service, and has asserted that his erectile dysfunction is related to either his service-connected DM or to his service-connected PTSD, and the medications used to treat his PTSD.  A claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).  However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability."  Id. at 86.  This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis).  

Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.  See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet. App. 545, at 552 (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001); Brokowski, 23 Vet. App. at 85.  Overall, the scope of the claim will be based on a sympathetic assessment of "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim," i.e., the information gathered upon investigation.  Clemons, 23 Vet. App. at 5.  In this case, the discussion will be limited to an analysis of the Veteran's claim under direct and secondary theories of entitlement.  

A VA examination report, dated in March 1971, indicates the Veteran's genitourinary examination was essentially negative.  A VA treatment record, dated in November 2001, shows the Veteran reported symptoms of erectile dysfunction, and explained that his erection was 50 percent as compared to when he was 17 years old.  He also complained of diminished nocturnal erections, though he had normal urges and climax.  He indicated that his last good erection was two years prior to the examination.  He denied experiencing dysuria, hematuria, heme-ejaculate or pain with erection.  The treating physician assistant (hereinafter "PA") diagnosed the Veteran with erectile dysfunction, and noted no previous hormonal studies were performed.  A February 2002 VA urology consult note reflects the Veteran was treated for symptoms of running erectile dysfunction.  The Veteran reported he was able to have partial erection adequate for occasional initiation of intercourse, but often lost his erection early.  He indicated that this had been ongoing for over a year, and was gradual in onset.  He denied any unusual stress present in his life other than work-related stress, and denied any problems with libido or voiding.  The VA urologist diagnosed the Veteran with an impression of erectile dysfunction, which was likely multifactorial including vasculogenic and possibly psychogenic issues.  

The Board finds the November 2001 and February 2002 VA treatment records to be highly probative as to the date of onset of the Veteran's erectile dysfunction.  They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  

A private treatment record, dated in July 2005, confirms that the Veteran was diagnosed with a new onset of DM, and that although he was observed to be more tired than normal, he had no other symptoms of DM.  It was noted that his blood pressure was high at the time.  

On VA DM examination in March 2006, the examiner noted the Veteran had a history of erectile dysfunction since November 2001, when he was diagnosed by the VA PA.  The diagnosis was confirmed by a VA urologist in February 2002, who indicated that the Veteran experienced erectile dysfunction, which was likely multifactorial including vasculogenic and possibly psychogenic issues.  It was noted that the Veteran was also diagnosed with essential hypertension in February 2003.  The examiner opined that the Veteran's erectile dysfunction was not a complication of his DM.  The examiner explained that his erectile dysfunction was secondary to his hypertension, and noted that the onset of the Veteran's erectile dysfunction was documented prior to the onset of his DM.  The examiner also concluded that the Veteran's erectile dysfunction was not worsened or increased by his DM.  

In August 2008, the Veteran underwent a VA genitourinary examination.  The Veteran complained of erectile dysfunction, with a date of onset of 2007, which he believed was due to his DM.  He indicated that he was diagnosed with DM during the summer of 2005, and that he developed erectile dysfunction in 2007.  He reported that he was still able to obtain an erection and could ejaculate.  He also indicated that he underwent an elective vasectomy 33 years prior in 1975, at "St. Joseph Hospital" in Flint, Michigan.  He noted a history of hypertension since 2001.  The examiner noted there was no history of trauma to the genitourinary system, no history of neoplasm, no general systemic symptoms due to genitourinary disease, no urinary symptoms, no urinary leakage, no history of recurrent urinary tract infections, no history of obstructed voiding, no history of urinary tract stones, no history of renal dysfunction or renal failure, no history of acute nephritis, no history of hydronephrosis and no cardiovascular symptoms.  The examiner indicated there was erectile dysfunction, and that the most likely etiology was related to medication.  

On physical examination, the examiner observed normal bladder, anus and rectal walls, penis, urethra, perianal sensation, bulbocavernosus reflex, right dorsalis pedis pulse, right posterior tibial pulse, left dorsalis pedis pulse and left posterior tibial pulse.  No peripheral edema was noted; however, the Veteran's prostate was described as generally enlarged.  The examiner noted a normal epididymis/spermatic cord/scrotum examination and a normal seminal vesicles examination, but a decreased cremasteric reflex examination.  

The examiner opined that erectile dysfunction was not caused by or a result of service-connected DM.  The examiner explained that erectile dysfunction was multifactorial, and the Veteran had a long standing history of hypertension, for which he had been taking a beta blocker.  The examiner noted that these conditions were listed as causes of erectile dysfunction.  The examiner indicated that on physical examination there was no indication of nerve impairment of the nerves that innervate the penis, which would indicate that the Veteran's erectile dysfunction was caused by the DM.  The examiner also noted that the Veteran elected to undergo a vasectomy in 1975.  

In September 2008, a note from "Dr. Everett" at the "Indian River Medical Center" reveals that the Veteran was undergoing treatment for hypertension and erectile dysfunction.  Dr. Everett opined that the erectile dysfunction could be a direct result of his DM.  The Board accords this opinion little probative value for determining the etiology of the Veteran's erectile dysfunction for various reasons.  First, Dr. Everett did not provide sufficient commentary to explain the cursory conclusion that the Veteran's erectile dysfunction could have been a direct result of his DM.  The weight of a medical opinion is diminished where the basis for the opinion is not adequately stated.  See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993).  Second, Dr. Everett provided the opinion in speculative terms by using the word "could" in the opinion.  The opinion is simply too speculative to establish a nexus.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus).  Moreover, although a medical opinion may not be discounted solely because the examiner did not review the claims file, critical pieces of information from a claimant's medical history can lend credence to the opinion of the medical expert who considers them and, conversely, detract from the medical opinions of experts who do not.  Nieves-Rodriguez v. Peake, 22 Vet. App. at 304.  In this case, Dr. Everett did not provide commentary on the fact that the Veteran's diagnosis of erectile dysfunction predated his diagnosis of DM, clearly an important piece of evidence in determining the likely etiology of the erectile dysfunction.  

As noted, in July 2009 the Veteran underwent a VA DM examination.  Here, the examiner noted a history of erectile dysfunction since 2004, for which he was taking Vardenafil, which was somewhat effective.  It was noted that the Veteran was still able to have intercourse, could still ejaculate and vaginal penetration was possible half the time; and he had undergone a voluntary vasectomy in 1972.  The examiner noted a medical history of erectile dysfunction with a most likely etiology of advancing age.  On genitourinary evaluation, the Veteran denied a history of trauma to the genitourinary system a history of neoplasm; general systemic symptoms due to genitourinary disease; urinary symptoms; urinary leakage; a history of recurrent urinary tract infections; a history of obstructed voiding; a history of urinary tract stones; a history of renal failure; a history of acute nephritis; a history of hydronephrosis; or cardiovascular symptoms.  

On physical examination, the examiner observed a normal bladder examination; normal anus and rectal walls examination; normal urethra examination; normal perineal sensation; no peripheral edema; no abdominal or flank tenderness; normal bulbovavernosus reflex; right dorsalis pedis pulse; normal right posterior tibial pulse; normal left dorsalis pedis pulse; normal left posterior tibial pulse; normal penis examination; normal testicles examination; normal prostate examination; normal epididiymis/spermatic cord/ scrotum examination; normal seminal vesicles examination; and normal cremasteric reflexes.  The examiner concluded that the Veteran's erectile dysfunction without loss of use of creative organ was not caused by or a result of DM.  The examiner explained that the nerves that are responsible for an erection were intact on physical examination, and noted that if the erectile dysfunction was caused by his DM, then the Veteran's nerves would not work properly.  The examiner indicated that the most common cause of erectile dysfunction is advancing age, and the use of beta blockers, which the Veteran was taking for his hypertension.  The examiner concluded that the cause of the Veteran's erectile dysfunction was his advancing age in combination with the beta blocker use.  

In October 2009, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he reported that he was evaluated for his erectile dysfunction by a female physician, and thus was not honest with her about the date of onset of the disorder because he did not want to tell her that he had been treated for erectile dysfunction for many years.  

As noted, in December 2009 the Veteran spouse provided a statement that included her observations of the Veteran's erectile dysfunction.  She indicated that due to the pain and stress of her husband's disabilities, stress had been placed on their relationship, and due to that stress, the Veteran experienced erectile dysfunction, which added to his depressive state.  

In his VA Form 9, Appeal to Board of Veterans' Appeals, received in June 2011, the Veteran argued that his erectile dysfunction was caused by his DM, which he believed had an earlier onset than its clinical discovery in 2005.  He also reported that his VA physician agreed that it was possible that the Veteran's DM was present prior to its discovery.  

In September 2012, the Veteran testified that he had been diagnosed with erectile dysfunction in approximately 2004 or 2005, which a VA examiner had attributed to non-service-connected hypertension and old age.  However, the Veteran argued that his service-connected PTSD and DM contributed to his erectile dysfunction.  Specifically, he indicated that certain pharmaceuticals used to treat both disabilities caused him to experience erectile dysfunction.  He reported that his DM had been diagnosed after his erectile dysfunction, and he did not start to take PTSD medication until 2009.  

More recently, in March 2013, the Veteran underwent a VA male reproductive system conditions examination, during which he was diagnosed with erectile dysfunction, with a date of onset of November 2001.  The Veteran reported that he began to notice problems with erectile dysfunction in 2000 when he was unable to get a full erection or they would not last long.  He claimed he did not seek medical treatment for his erectile dysfunction because he was too proud to admit that there was something wrong.  The examiner noted a history that the Veteran underwent a vasectomy around 1973.  The Veteran reported experiencing voiding dysfunction, but no urine leakage, which caused increased urinary frequency.  However, there were no signs or symptoms of obstructed voiding and the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections.  The examiner noted that the Veteran was not able to achieve an erection sufficient for penetration and ejaculation without medication, but could with medication.  The examiner observed that the Veteran did not have retrograde ejaculation, and did not have a history of chronic epididymitis, epididymo-orchitis or prostatitis.  

On physical examination, the Veteran was described as having a normal penis, normal testes and a normal epididymis.  He did not have a benign or malignant neoplasm or metastases related to his erectile dysfunction.  The prostate was not examined as per the Veteran's request.  The examiner noted that the Veteran had a pertinent physical finding/complication/condition/sign/symptom of decreased cremasteric reflex and normal anal wink.  No testicular biopsy had been performed; however, general chemistry testing was performed.  

The examiner opined that the etiology of the Veteran's erectile dysfunction was his advancing age.  The examiner also opined that the Veteran's erectile dysfunction was less likely than not proximately due to or the result of his service-connected PTSD and/or DM.  The examiner explained that the most common etiology for erectile dysfunction is advancing age.  The examiner noted that the Veteran had erectile dysfunction since 2001, but he was diagnosed with DM in 2006.  The examiner noted that DM affects erectile dysfunction by affecting the nerves that innervate the penis.  The examiner observed that on physical examination there was no indication of nerve dysfunction of the nerves that innervate the penis, thus DM had not caused or aggravated the Veteran's erectile dysfunction.  The examiner noted that the Veteran was diagnosed with PTSD in 2009, and that the Veteran related his PTSD to his experiences in Vietnam; however, he was still able to have sexual intercourse and father three children in the 1970's.  The examiner reasoned that if the Veteran's erectile dysfunction was caused by his PTSD he would not have been able to have intercourse and father children from the time of the event causing his PTSD.  The examiner explained that the medical literature indicated that erectile dysfunction caused by PTSD would surface in the immediate time period after the traumatic event.  The examiner reiterated that there was no evidence of record of erectile dysfunction problems until 2001, and that the Veteran was diagnosed with PTSD in 2009, and started treatment on the medication Citalopram for his PTSD until 2011, long after the onset of his erectile dysfunction.  The examiner indicated that the most common cause of erectile dysfunction is advancing age, and it is not unusual to see erectile dysfunction in a person the Veteran's age.  The examiner noted that other factors that influence erectile dysfunction include hypertension, hyperlipidemia, and medications for hypertension such as Hydrochlorothiazide and hyperlipidemia, smoking, alcohol use, obesity and sedentary life style.  The examiner concluded that the Veteran's erectile dysfunction was not caused by or aggravated by his service-connected disabilities, including PTSD or treatment for PTSD.  The examiner also noted that the Veteran's erectile dysfunction was not due to any genitourinary disorder shown on entrance examination.  The examiner opined that it was less likely as not that the Veteran's erectile dysfunction had its onset in the military or was otherwise etiologically related to service, to include due to any demonstrated genitourinary disorder shown on entrance.  The examiner observed that the Veteran was not seen for or treated for erectile dysfunction while on active duty military service or immediately after discharge.  Although the Veteran had glomerulonephritis at age 14, the examiner did not believe that this caused his erectile dysfunction.  The examiner noted that in service the Veteran also had cystitis and nonspecific urethritis which were both treated, resolved, and would not have caused erectile dysfunction.  The examiner reiterated that the Veteran was able to have sexual intercourse and father three children in the 1970's after his military service.  The examiner again concluded that the Veteran's erectile dysfunction did not have its onset in the military or from any genitourinary disorder shown on entrance.  

With regard to the VA examination reports, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are generally adequate with regard to the issue decided herein.  In this regard, the examinations have been predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disability at issue; and documented and considered the Veteran's complaints and symptoms.  The examiner considered the available pertinent evidence of record, and provided a rationale for the opinion rendered, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012).  

Moreover, the Board finds the March 2013 examiner's informed medical opinion to be persuasive and dispositive in this case.  In comparing the Veteran's contentions to the VA examiner's conclusions, the VA examination report is simply based upon greater medical expertise.  Although there is no categorical requirement of "'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,'" more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury, in service."  Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)).  "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Id.  Further, if the disability is of the type for which lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination regarding the existence of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).  In this case there simply is no lay or clinical evidence that the Veteran experienced erectile dysfunction prior to 2001, and it is well established that his diagnoses of and treatment for DM and PTSD came long after that onset.  Moreover, the examiner's explanation as to the functional impact of the type of nerve damage that would be caused by DM if it were the cause of the Veteran's erectile dysfunction supports the finding that DM did not cause or aggravate the Veteran's erectile dysfunction.  Also, the examiner's explanation that had PTSD been the cause or an aggravating factor of the erectile dysfunction then the Veteran would have experienced an onset concurrent with the stressor event, supports the finding that PTSD did not cause or aggravate the Veteran's erectile dysfunction.  Absent a challenge to the expertise of an examiner, the Board may assume the competence of VA examiners.  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a Veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency).  

The Board recognizes that there is positive medical evidence in favor of the Veteran's claim, in the form of the September 2008 private medical opinion.  However, as discussed above, the Board accords this opinion no probative value.  If there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991).  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Accordingly, the Board finds that the March 2013 VA examination, which represents the most probative evidence on this question, establishes that neither the Veteran's service-connected PTSD, nor his service-connected DM caused or aggravated his erectile dysfunction.  The examination also establishes that the Veteran's erectile dysfunction did not predate his service and was not incurred in or aggravated by his active military service.  "It is the responsibility of the Board . . . to assess the credibility and weight to be given to evidence."  Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . ."  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

In conclusion, the Board finds after careful review of the entire record that the weight of the evidence is against the Veteran's claim of service connection for erectile dysfunction.  In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  













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ORDER

An initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity prior to July 17, 2009, is denied.  

A disability evaluation of 40 percent, but not higher, for service-connected peripheral neuropathy of the left lower extremity from July 17, 2009, is granted, subject to the regulations governing the payment of VA monetary benefits.  

An initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity prior to July 17, 2009, is denied.  

A disability evaluation of 40 percent, but not higher, for service-connected peripheral neuropathy of the right lower extremity from July 17, 2009, is granted, subject to the regulations governing the payment of VA monetary benefits.  

Service connection for erectile dysfunction is denied.  




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs