Citation Nr: 1335327 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-32 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating (evaluation) in excess of 20 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an increased rating (evaluation) in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an increased rating (evaluation) in excess of 10 percent for peripheral neuropathy of the right upper extremity. 4. Entitlement to an increased rating (evaluation) in excess of 10 percent for peripheral neuropathy of the left upper extremity. 5. Entitlement to an increased rating (evaluation) in excess of 20 percent for type II diabetes mellitus with diabetic retinopathy and cataracts. 6. Entitlement to an increased (compensable) rating (evaluation) for tinea pedis, including disease of the nails. 7. Entitlement to service connection for hyperlipidemia. 8. Entitlement to service connection for an acquired psychiatric disorder, to include depression, other than posttraumatic stress disorder (PTSD). 9. Entitlement to service connection for tobacco abuse. 10. Entitlement to service connection for sickle cell trait. 11. Entitlement to service connection for positive purified protein derivative (PPD) test. 12. Entitlement to service connection for corns and calluses of the feet. 13. Entitlement to service connection for a low back disorder. 14. Whether new and material evidence has been received to reopen service connection for hypertension to include as secondary to type II diabetes mellitus or coronary artery disease (CAD). 15. Whether new and material evidence has been received to reopen service connection for peripheral vascular disease (PVD) to include as secondary to type II diabetes mellitus or CAD. 16. Entitlement to service connection for hypertension to include as secondary to type II diabetes mellitus or CAD. 17. Entitlement to service connection for PVD to include as secondary to type II diabetes mellitus or CAD. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from March 1968 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, though jurisdiction over these matters was subsequently transferred to the RO in Nashville, Tennessee. In that decision, all the issues now on appeal were denied, to include denials of service connection and denials of increased ratings. The Veteran appealed the denials of service connection and increased ratings in this decision, and the matters are now before the Board. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held in Nashville, Tennessee, on May 23, 2013. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record, other than the transcript of the hearing before the undersigned. This document is considered to be part of the claims file, and as such has been considered as part of the present appeals before the Board. The issues of entitlement to service connection for an acquired psychiatric disorder, hypertension, and PVD as well as entitlement to higher ratings for peripheral neuropathy of the bilateral upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. At a May 23, 2013 hearing before a Veterans Law Judge, prior to the promulgation of a decision in the appeal, the Veteran withdrew appeals on the issues of an increased rating for tinea pedis, and service connection for hyperlipidemia, tobacco abuse, sickle cell trait, positive PPD test, and corns and calluses of the feet; there are no questions of fact or law remaining before the Board in these matters. 2. Throughout the entire rating period, diabetes mellitus has been productive of insulin use and restricted diet, but has not required regulation of activities. 3. In an October 2002 rating decision, the RO denied service connection for hypertension due to lack of in-service complaint, treatment, or diagnosis, lack of hypertension within one year of separation, and on a secondary basis because hypertension existed prior to diabetes mellitus. The Veteran did not file an appeal. 4. In a September 2003 rating decision, the RO denied service connection for PVD due to lack of in-service complaint, treatment, or diagnosis, lack of hypertension within one year of separation, and on a secondary basis because the disease pre-existed diabetes mellitus. The Veteran did not file an appeal. 5. The evidence associated with the claims file subsequent to the October 2002 and September 2003 rating decisions relates to unestablished facts that are necessary to substantiate the Veteran's service connection claims insofar as it includes new evidence regarding the onset and progress of the claimed disorders. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claims. 6. The Veteran did not have an in-service low back injury. 7. The Veteran had some in-service complaints of low back pain during service. 8. The Veteran has a current diagnosis of degenerative disc disease. 9. Degenerative disc disease is not etiologically related to service, including to the complaints of back pain in service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of substantive appeals have been met regarding the appeals of increased rating for tinea pedis, and service connection for hyperlipidemia, tobacco abuse, sickle cell trait, positive PPD test, and corns and calluses of the feet. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 3. The October 2002 and September 2003 rating decisions denying service connection for hypertension and PVD, respectively, became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 4. Evidence received since the October 2002 and September 2003 rating decisions is new and material to reopen claims for service connection for hypertension and PVD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a),(c) (2013). 5. A low back disorder was not incurred in service, and is not related to service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision, and may be withdrawn on the records at a hearing. 38 C.F.R. § 20.204. At the May 2013 Board hearing before the undersigned, the Veteran indicated that he was withdrawing appeals regarding an increased rating for tinea pedis and service connection for hyperlipidemia, tobacco abuse, sickle cell trait, positive PPD test, and service connection for corns and calluses of the feet. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration on these particular mattes. Accordingly, the Board does not have jurisdiction to review these issues, and the identified appeals are dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in July 2008, prior to the initial adjudication of the service connection and increased rating claims currently on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case in the July 2008 letter, the Veteran was provided with such notices, including the type of evidence necessary to establish a disability rating and effective dates. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the VA Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Such notice was provided to the Veteran in the July 2008 letter, thus meeting the requirements of notice as related to Kent. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, in the May 2013 Board hearing before the undersigned, the presiding Veterans Law Judge clarified the issues on appeal, as well as the appeals which the Veteran intended to withdraw. Additional potentially relevant evidence was identified that may support the Veteran's claims including VA psychological treatment records and lay testimony of worsening neuropathy symptoms. These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained as have records of VA treatment, and an inquiry was made with the Social Security Administration (SSA) for records in its possession. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the U.S. Court of Appeals for Veterans Claims (Court) has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). In developing the claim, a VA examination has not been provided with respect to the issue of service connection for a low back disorder. As discussed below, the service treatment records are silent as to any complaints or treatment of the back, and on service separation examination in February 1970 and examination for National Guard duty in February 1974, the Veteran's spine was normal and he affirmatively denied any history of arthritis or recurrent back pain. Moreover, post-service evidence does not indicate complaints referable to the back until 2002, more than 30 years after separation from service. The Veteran has endorsed an in-service injury while changing the tire on a truck; however, as discussed below, the Board finds the Veteran to be an inaccurate historian with respect to this event. Accordingly, the evidence establishes no in-service injury, disease, or event related to the low back; thus, a VA examination regarding the etiology of the Veteran's current low back symptoms, to include diagnosed degenerative disc disease, would be of no probative value in adjudicating the claim. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence establishes no in-service injury, disease, or event, VA is not obligated to provide a medical examination). The Veteran has been afforded multiple VA examinations including in July 2008, September 2009, and September 2011. During these examinations physical examinations of the Veteran were conducted, the Veteran's history was taken down, the Veteran's lay history and contentions were considered, diagnostic testing was conducted, and VA examiners laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While the VA examiners during the July 2008 and September 2009 examinations were not provided the Veteran's claims file for review, accurate histories were elicited from the Veteran regarding signs and symptoms related to diabetes mellitus. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record, including testimony provided at the May 2013 Board hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating for Diabetes Mellitus Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was previously awarded service connection and assigned an initial disability rating for diabetes mellitus in a rating decision of October 2002. An appeal of the initial rating is not before the Board; rather the Veteran seeks in increased rating in excess of 20 percent. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Here, as the evidence discussed below shows, diabetes mellitus has not significantly changed during the period on appeal, and a uniform rating is warranted for the entire rating period. In the October 2008 rating decision on appeal, the claim for an increased rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy and cataracts was denied. The 20 percent rating is in effect from July 26, 2002. The Veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code (DC or Code) 7913. Diagnostic Code 7913 provides a 20 percent disabling for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under DC 7913. Noncompensable complications are considered part of the diabetic process under the Code. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, DC 7913. The criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board has reviewed all the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms, impairments, and treatments associated with diabetes mellitus such as dietary restrictions and well as changes in vision and skin sensations and that are observable. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the diabetes mellitus merely because it is lay evidence or because it was reported by the Veteran. See Kowalski, 19 Vet. App. 171 (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Veteran contends that diabetes mellitus has been more than 20 percent disabling, with insulin taken orally, a prescribed restricted diet, lightheadedness, and restrictions in jaw movement. To the extent that these are lay-observable treatments and symptoms, the foregoing endorsements are competent. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. After reviewing the entire claims file, the Board finds that the Veteran's diabetes mellitus has been not more than 20 percent disabling for any period on appeal. The Board finds that diabetes mellitus has been productive of insulin use and restricted diet, but at no time has required regulation of activities. On VA examination in July 2008, the Veteran denied any ketoacidosis, hypoglycemic reactions or hospitalizations for the hypoglycemic reactions. The Veteran was then taking two medications, each twice daily, but 4 to 6 times a month blood sugar levels drop to the point that the Veteran feels "funny, lightheaded, and then will quickly ear something." The Veteran visited a diabetic care provider every two months, and there were no physician-prescribed restrictions on strenuous activities. The Veteran complained of blurry vision, and endorsed having gained five pounds over the prior two months, but attributed the weight gain to stress. A VA primary care note from May 2005 indicated that diabetes mellitus was "well controlled." On VA primary care in April 2009, the Veteran indicated that all medications were being taken, and an attempt to "eat right" was being made. The Veteran did not regularly monitor blood glucose levels, but when checked, fasting blood glucose was around 110 to 120. There had been no hypoglycemic episodes. A July 2010 VA treatment record indicated that diabetes mellitus was uncontrolled, and the Veteran was recommended to exercise and lose weight. During the May 2013 Board hearing before the undersigned, the Veteran endorsed using oral doses of insulin, and being on a restricted diet. When asked if whether a doctor had restricted activates, the Veteran responded that activities are restricted, but only to the extent he cannot "go so far." Nonetheless, a review of the claims file reveals that the Veteran's limitations may be related to discomfort or inability to move about, but are not related to any doctor-prescribed prohibition on activity. Again, under DC 7913, the current 20 percent rating contemplates diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The next higher, 40 percent, rating contemplates diabetes mellitus requiring insulin, restricted diet, and regulation of activities. As the evidence shows that the Veteran's activities are not regulated by physician, a 40 percent rating is not warranted for any period on appeal. 38 C.F.R. §§ 4.3, 4.7. The Notes section of DC 7913 provides that compensable complications of diabetes are to be rated separately unless when not used to support a 100 percent rating under the same Code. Furthermore, noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119. In this case, additional complications of diabetes mellitus include peripheral neuropathy, renal dysfunction, retinopathy, and cataracts. Of these, peripheral neuropathy and renal dysfunction have been separately rated and, thus, are not under consideration in evaluation the current rating for diabetes mellitus. Retinopathy and cataracts, however, have been styled as part of the service-connected diabetes mellitus. On VA examinations in July 2008 and August 2011, the Veteran was found not to have retinopathy, with the July 2008 VA examiner specifically stating "there is no evidence of diabetic retinopathy. This examiner believes the hemorrhage and exudates visualized were due to branch retinal vein occlusion rather than to diabetic retinopathy;" there has been no contention, lay or otherwise, that retinal vein occlusion is related to diabetes mellitus. With regard to cataracts, the August 2011 VA examiner concluded that, while some individuals with diabetes "develop cataracts earlier than their non-diabetic counterparts," the Veteran's cataracts are consistent with normal aging and are "less likely than not related to" diabetes. Other than the Veteran's contentions that hypertension and PVD are related to diabetes mellitus (contentions which are addressed below), the evidence of record does not show any compensable complications of service-connected diabetes mellitus. Accordingly, the Board concludes that the criteria for a higher rating than 20 percent have not been met or more nearly approximated throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for service-connected diabetes mellitus. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the service-connected diabetes mellitus, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability based on a combination of the level of treatment, restrictions on activity, and symptomatology; thus, the demonstrated manifestations - namely treatment with insulin and restricted diet - are contemplated by the provisions of the rating schedule. Furthermore, the rating criteria specifically call for the separate evaluation of additional compensable complications, and in this case the Veteran's additional compensable complications are already being separately rated. Other than those currently subject to a separate rating, the Veteran's complications are not compensably disabling. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App 436, 442 (2002); see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's diabetes mellitus, and referral for consideration of an extra-schedular evaluation is not warranted. Reopening Service Connection for Hypertension and PVD Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. Service connection for hypertension was denied in a rating decision of October 2002 due to lack of in-service complaint, treatment, or diagnosis. The records also lacked symptoms or diagnosis of hypertension within one year of separation. Additionally, the RO denied service connection as secondary to diabetes melitis because the disease pre-existed diabetes melitis. Similarly, in a rating decision of September 2003, service connection for PVD was denied due to lack of in-service complaint, treatment, or diagnosis of the disease. The records also lacked symptoms or diagnosis of PVD within one year of separation and the RO denied service connection as secondary to diabetes melitis because the PVD pre-existed diabetes melitis. The Veteran did not enter a notice of disagreement with these decisions, and they became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence which includes existing evidence not previously submitted to agency decisionmakers that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Notwithstanding any other section of 38 C.F.R. Part 3, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a) (concerning the requirement to reopen a previously finally denied claim with new and material evidence). See 38 C.F.R. § 3.156(c)(1). Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of 38 C.F.R. § 3.156(c) are met; (ii) additional service records forwarded by the Department of Defense or the service department any time after VA's original request for service records; and (iii) declassified records that could not have been obtained when the records were classified when VA decided the claim. Such records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. See 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions applicable to the previously decided claim. See 38 C.F.R. § 3.156(c)(3). Service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim. 38 C.F.R. § 3.156(c)(2). The Board finds that, since the time of these prior denials, new and material evidence has been added to the record. Specifically, during the May 2013 Board hearing, the Veteran reported regarding his post-service history of chest pains, sweating, and other symptomatology including triple bypass heart surgery in 1985. To the extent that such a medical history relates to the progress of both claimed disorders, and in turn may relate to how either may be related to diabetes mellitus, the foregoing evidence is material. Furthermore, such testimony was not of record at the time of the 2002 and 2003 rating decisions; thus, it is also new. Accordingly, the Board finds that new and material evidence has been received to reopen service connection for hypertension and PVD. Following additional development of evidence, the issue will be reconsidered. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis, but only if (1) the 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. See Davidson at 1316; Jandreau at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Initially, the Board notes that the Veteran does not allege that the claimed low back disorder was incurred as a result of combat against enemy forces. Accordingly, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application with respect to the immediate appeals for service connection. Service Connection for a Low Back Disorder The Veteran contends he injured the low back while changing the tire on a truck during service. During the May 2013 Board hearing, the Veteran reported going to sick call and being given pain medication, and three days of restricted duties. The Board finds that the Veteran did not sustain a low back injury in service, but did have some in-service complaints of low back pain that did not persist in service or after service. Service treatment records indicate that in September 1968 the Veteran complained of low back pain, on the right side, especially when bending or sitting down. A physical evaluation revealed normal gait, and full range of motion and the evaluator affirmatively indicated "NDF," meaning no disease was found. At service separation in February 1970, the Veteran affirmatively denied any current or past history of recurrent back pain, and on examination at service separation the spine was found to be normal. On the question of in-service injury, a few years after active service, in February 1974, the Veteran underwent examination related to eligibility for National Guard service, during which time the Veteran again affirmatively denied any current or past history of recurrent back pain. On examination in February 1974, the spine was again assessed as normal. When asked about his general medical history in September 2011, the Veteran endorsed coronary artery bypass graft surgery in 1985, and a prior hernia repair, but gave no general medical history referable to any trauma of the back. Such evidence further weighs against a finding of in-service low back injury or onset of symptoms of low back disorder during and since service. The Veteran has a current disability of the low back, diagnosed as degenerative disc disease. On VA treatment in August 2004, the Veteran reported low back pain on walking. The Veteran also stated that the current medication did not help low back symptomatology. The assessment was low back pain with muscle spasms. Reported April 2008 MRI showed loss of disc height and hydration at the L4-5 and L5-S1 levels. The Veteran had a herniated disc in the midline at L4 extending into the left side. There was also mild loss of disc height at the L3-4 level. In January 2009, the Veteran reported for what was described as "initial evaluation, treatment and rehabilitation" of low back pain with radiculopathy. On VA examination in September 2011, degenerative disc disease was identified, with pain radiating to the hips. The weight of the evidence shows that the current low back disability, diagnosed as degenerative disc disease, is not etiologically related to service. The Veteran stated in January 2009 that low back pain had begun five years prior (which reflects onset over 30 years after service separation), and that pain was a chronic, intermittent aching pain at a level of 6 to 7 out of 10. He reported that low back pain was triggered by prolonged walking activity. The evaluator in April 2008 commented that MRI findings "could be secondary to older trauma," but did not identify any older trauma, and there was no evidence of trauma during service. The Veteran's testimony endorsing an in-service back injury followed by symptomatology is competent to the extent that back pain is capable to lay observation. Layno, 6 Vet. App. 465. Nonetheless, the Board finds that the Veteran's contentions of in-service back injury followed by continuous symptomatology are inconsistent with, and outweighed by, the other, more contemporaneous lay and medical evidence of record, so are not credible. While the Veteran now contends that back pain began in service and has been ongoing ever since, in January 2009 the Veteran reported during VA treatment that low back pain began just five years prior. Such a reported history by the Veteran, made for treatment purposes, shows onset of low back symptoms of disorder over 30 years after service separation. Furthermore, in reporting the medical history on VA examination in September 2011, the Veteran failed to mention any history of an in-service back trauma. This inconsistency combined with silence when otherwise affirmatively speaking weighs directly against the Veteran's credibility as an accurate historian. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7)). The Veteran had sought treatment numerous times in the past, and had given what was assumed to be complete medical histories, especially because the histories were to obtain treatment for a back disability. Yet not until initiating a claim for compensation did the Veteran endorse in-service injury or in-service onset of back symptoms which he asserted were unremitting in and since service. The Veteran currently endorses an in-service onset of low back pain; however, such recent assertion made for compensation purposes is inconsistent with, and outweighed by, the Veteran's own, contemporaneous history provided at service separation, and on National Guard examination four years later, at which times he denied a history of recurrent low back pain and did not mention any in-service back injury. Such recent assertion is also inconsistent with the more contemporaneous medical findings of normal spine that were rendered upon physical examination at service separation and at the National Guard entrance examination. In weighing the conflicting statements provided by the Veteran at various times, the point in time in which the statement was made is important because a recounting of an event which is closer to the time that event occurred is naturally less likely to be diluted by the shortcomings of human memory. The Board is presented with statements of medical history made at service discharge and soon thereafter, combined with post-service statements made for treatment purposes, and the lack of complaints or treatment until 2004, as one additional factor that weighs against a finding of in-service injury or symptoms of low back disability prior to decades after service in 2004. This evidence is weighed against the Veteran's statements, made many years after service separation, and for compensation purposes, of in-service back injury and symptoms since the injury. Based on the foregoing, the Veteran is found to be a poor historian, and the endorsement of an in-service injury while changing a tire - an endorsement made years later and for compensation purposes, but not contemporaneous with service, not at service separation, not for treatment purposes, and not when describing his medical history on other occasions - is not credible. In total, the evidence shows that while the Veteran reported back pain a single time in service, such pain was not associated with an event or injury and the Veteran was diagnosed as not having any associated disease. Furthermore, back symptomatology was not unremitting during service or since service. The current low back disorder symptoms did not manifest until many decades after separation from service, and the current diagnosis of degenerative disc disease is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal for an increased rating for tinea pedis is dismissed. The appeal for service connection hyperlipidemia is dismissed. The appeal for service connection tobacco abuse is dismissed. The appeal for service connection sickle cell trait is dismissed. The appeal for service connection positive PPD test is dismissed. The appeal for service connection corns and calluses of the feet is dismissed. New and material evidence having been received, the appeal to reopen service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus or CAD, is granted. New and material evidence having been received, the appeal to reopen service connection for PVD, to include as secondary to service-connected type II diabetes mellitus or coronary artery disease CAD, is granted. A rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy and cataracts is denied. Service connection for a low back disorder is denied. REMAND Service Connection for Hypertension The Veteran contends that hypertension is related to service-connected diabetes mellitus or service-connected CAD. During the May 2013 Board hearing, the Veteran endorsed a history of chest pains and sweating, but that he did not seek medical attention immediately when these symptoms first onset. The Veteran stated that heart problems began in the 1980s, with triple bypass heart surgery in 1985. The Veteran reported that he now has shortness of breath and stabbing pains in the chest. Finally, during the hearing the Veteran stated that he had recently undergone nuclear stress testing, but was still awaiting results. On VA examination in July 2008, it was noted that the Veteran was diagnosed with hypertension in early 2000, but that blood pressures were well controlled. While this diagnosis predates the Veteran's diagnoses for diabetes mellitus and CAD, the question of secondary service connection due to aggravation (i.e., worsening beyond normal progression) nonetheless remains. Specifically, the question is whether a service connected disease or injury, to include diabetes mellitus or CAD, aggravated the Veteran's non-service-connected hypertension. The record establishes a current diagnosis of hypertension, and lay evidence suggesting an association between hypertension and diabetes mellitus or CAD; however, no VA examination has not been afforded with regard to hypertension, and there is insufficient medical evidence on file for VA to make a decision on the claim at this time. Thus, the Board finds that a VA examination is needed to help determine whether the Veteran's hypertension was aggravated by a service-connected disease or injury before the Board can properly adjudicate the claim. See McLendon. Service Connection for PVD The Veteran essentially contends that PVD is secondary to a service-connected disability to include diabetes mellitus or CAD (The Board notes that PVD is also referred to as peripheral artery disease (PAD)). In April 2002, the Veteran reported skin lesions between the toes which were a recurrent problem. The VA examiner concluded that PVD was "most likely attributed to [the Veteran's] longstanding history for hypertensive vascular disease, [and] arteriosclerotic heart disease." The examiner went on to state that diabetes mellitus was a "more of a recent occurrence" and, thus, did not cause the Veteran's PVD. A report of VA examination in July 2008 included a January 2006 vascular laboratory consultation record, which indicated mild arterial insufficiencies in both lower extremities. The report also included dorsalis pedis and posterior tibial pulse findings. Based on this record, and the historical records documenting a long history of smoking, the examiner opined that PVD was as likely as not secondary to tobacco abuse. On VA examination in September 2009, the Veteran reported having been diagnosed with dermatophytosis in the early 1970s, after discharge from service. The Veteran indicated that, while on active duty, wet socks were worn for 4 to 6 hours at a time, but never for more than a day. The Veteran stated that the diagnosis in the early 1970s was for "jungle rot," and the symptoms were limited to the feet. The Board finds that a VA examination opinion would assist in deciding the Veteran's claim for service connection for PVD. Specifically, no VA examiner has opined as to the likelihood that a service-connected disease or injury, to include diabetes mellitus or CAD, aggravated the Veteran's PVD. Thus, a VA examination and opinion should be obtained to help determine whether one or more service-connected diseases or injuries aggravated the Veteran's PVD. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that his physical condition as a result of service-connected disabilities has caused the onset of depression. The Veteran has also endorsed participating in ongoing mental health VA treatment since 2011, the last date for which the claims filed includes VA mental health treatment records. The Board finds that additional pertinent records have been identified, and an effort should be made to associate such records with the claims file. Following this development, a VA examination should be conducted to help determine the likely etiology of the Veteran's acquired psychiatric disorder, including whether such disorder was caused or aggravated by the service-connected disabilities. Increased Rating for Peripheral Neuropathy In testimony during the May 2013 Board hearing before the undersigned, the Veteran indicated that service-connected peripheral neuropathy has become worse in the last two years. The most recent VA examination referable to peripheral neuropathy was greater than two years ago. A new examination should be conducted in order to help assess the Veteran's current level of symptomatology. Furthermore, an effort should be made to associate with the claims file any records of VA treatment referable to peripheral neuropathy. Accordingly, the above-indicated matters are REMANDED for the following action: 1. Associate with the claims file any relevant VA treatment records, from July 2011. This should include any VA treatment records relating to mental health treatment and treatment of peripheral neuropathy. 2. Following the above development, schedule the Veteran for VA examination related to hypertension and PVD. The VA claims folder should be made available to the examiner for review in connection with the examination. On examination the VA examiner should offer the following opinions: a. Is it as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's hypertension is related to service? b. Is it as likely as not that the Veteran's hypertension was due to a service-connected disability, to include diabetes mellitus? c. Is it as likely as not that the Veteran's hypertension was due to a service-connected disability, to include coronary artery disease? d. Is it as likely as not that the Veteran's hypertension was aggravated by a service-connected disability, to include diabetes mellitus? e. d. Is it as likely as not that the Veteran's hypertension was aggravated by a service-connected disability, to include coronary artery disease? f. Is it as likely as not that the Veteran's peripheral vascular disease is related to service, to include the wearing of wet socks 4 to 6 hours at a time during service. g. Is it as likely as not that the Veteran's peripheral vascular disease was due to a service-connected disease, specifically to include diabetes mellitus or coronary artery disease? h. Is it as likely as not that the Veteran's peripheral vascular disease was aggravated by a service-connected disease, specifically to include diabetes mellitus or coronary artery disease? i. Is it as likely as not that the Veteran's peripheral vascular disease was due to or has been aggravated by the Veteran's hypertension. j. Is it as likely as not that the Veteran's peripheral vascular disease was aggravated by the Veteran's hypertension. k. If in addressing the foregoing the examiner does not otherwise identify the likely etiology of the Veteran's peripheral vascular disease, the examiner should opine on the likely etiology of peripheral vascular disease and what factors may aggravate the Veteran's peripheral vascular disease. 3. Schedule the Veteran for a VA mental health examination. The VA claims folder should be made available to the examiner for review in connection with the examination. On examination the VA examiner should identify all of the Veteran's current mental health diagnoses in accordance with the DSM-IV. For EACH of these diagnoses other than PTSD, the examiner is to offer the following opinion: a. Is it as likely as not (i.e., to at least a 50 percent degree of probability) that the diagnosed mental health disorder was caused by service? b. Is it as likely as not that the diagnosed mental health disorder is due to one or more service-connected diseases? c. Is it as likely as not that the diagnosed mental health disorder was aggravated by one or more service-connected diseases? The examiner should opine the likely etiology of any other diagnosed mental health disorder. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. 4. Schedule the Veteran for a VA examination relating to the current level of symptomatology associated with peripheral neuropathy of the upper and lower extremities. 5. After completing all indicated development, readjudicate the claims for service connection for hypertension, service connection for peripheral vascular disease, service connection for an acquired psychiatric disorder other than PTSD, and entitlement to higher evaluations for bilateral upper and lower extremity peripheral neuropathy in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs