Citation Nr: 1606079 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 09-39 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to evaluations in excess of 10 percent for peripheral neuropathy in each lower extremity, prior to November 9, 2009. 2. Entitlement to evaluations in excess of 40 percent for peripheral neuropathy in each lower extremity, from November 9, 2009. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 4. Entitlement to service connection for periodontal disease for the purposes of obtaining treatment. 5. Entitlement to service connection for sleep apnea, to include as secondary to his service-connected acquired psychiatric disability and/or diabetes mellitus. 6. Entitlement to service connection for myelofibrosis, claimed as B cell/hairy cell leukemia, to include as the result of exposure to herbicides while serving in Vietnam. 7. Entitlement to an effective date earlier than November 9, 2009, for the award of special monthly compensation (SMC) based on the need for aid and attendance. 8. Entitlement to an award of SMC based on the loss of use of feet. 9. Entitlement to an award of SMC based on the loss of use of both buttocks. REPRESENTATION Veteran represented by: Carol J. Ponton, Attorney ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1970. This appeal is before the Board of Veterans' Appeals (Board) from February 2009, August 2011, and March 2013 rating decisions of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Board remanded the Veteran's appeal with instruction to issue a statement of the case with respect to his claims related to leukemia and aid and attendance compensation, and to schedule him for a hearing before the Board. A statement of the case was issued in February 2015, and the Veteran withdrew his request for a hearing in statements made in June 2015 and December 2015. The Board is therefore satisfied that the instructions in its remand of February 2015 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to SMCs based on the loss of use of feet and both buttocks are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to November 9, 2009, the Veteran's bilateral peripheral neuropathy was productive of moderately severe incomplete paralysis of the sciatic nerve in each lower extremity, but not productive of complete paralysis or severe incomplete paralysis with marked muscular atrophy. 2. From November 9, 2009, the Veteran's bilateral peripheral neuropathy was productive of moderately severe incomplete paralysis of the sciatic nerve in each lower extremity, but not productive of complete paralysis or severe incomplete paralysis with marked muscular atrophy. 3. Hypertension was caused by service-connected diabetes mellitus. 4. For the entirety of the appeal period, the Veteran is in receipt of a combined schedular rating of 100 percent or a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). 5. Sleep apnea is not related to a service-connected acquired psychiatric disorder, diabetes mellitus, or to service. 6. Myelofibrosis is not related to exposure to herbicides in Vietnam or to service. 7. The Veteran's service-connected disabilities caused him to be in regular need of aid and attendance as of March 20, 2008. CONCLUSIONS OF LAW 1. The criteria for evaluations of 40 percent, but not in excess thereof, for peripheral neuropathy in each lower extremity, prior to November 9, 2009, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). 2. The criteria for evaluations in excess of 40 percent for peripheral neuropathy in each lower extremity, from November 9, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). 3. The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 4. The criteria for service connection for periodontal disease for the purposes of obtaining treatment have been met. 38 U.S.C.A. §§ 1101, 1712, 5107 (West 2014); 38 C.F.R. §§ 3.381, 17.161(h) (2015). 5. The criteria for service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disorder or diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 6. The criteria for service connection for myelofibrosis, claimed as B cell/hairy cell leukemia, to include as the result of exposure to herbicides while serving in Vietnam, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 7. The criteria for an effective date of March 20, 2008, for an award of special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. §§ 3.350(b), 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letters dated April 2008, October 2010, and June 2011. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and relevant Social Security Administration records have been obtained, as have relevant private medical records identified by the Veteran. The Veteran was provided VA examinations of his peripheral neuropathy in December 2008 and April 2010, of his hypertension in December 2008, and of his sleep apnea in April 2012 and February 2015. The Board finds that these examinations and their associated reports were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to leukemia, the Veteran has not been provided with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2) (2002); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there is no indication that the disability is associated with service, and VA therefore has no duty to provide a medical examination. With regard to periodontal disease, to the extent service connection is denied it is denied as a matter of law. Where the facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations, VCAA does not apply and no VA examination is necessary. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Peripheral Neuropathy The Veteran claims increased ratings for peripheral neuropathy of his lower extremities. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran is currently rated for peripheral neuropathy in each of the lower extremities, manifested by paralysis of the sciatic nerve, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. An evaluation of 10 percent is warranted for mild incomplete paralysis, an evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 40 percent is warranted for moderately severe incomplete paralysis, an evaluation of 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy, and an evaluation of 80 percent is warranted for complete paralysis. Complete paralysis of the sciatic nerve is present when the foot dangles and drops, where no active movement is possible of muscles below the knee, and where flexion of the knee is weakened or lost. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Private treatment records indicate that in June 2007 the Veteran was seen by his podiatrist for, among other things, his peripheral neuropathy of the lower extremities. His podiatrist noted a history of paresthesia and burning with diabetic neuropathy of bilateral lower extremities with abnormal Semmes-Weinstein esthesiometer readings. An August 2007 letter from the Veteran's private podiatrist stated that his neuropathy is progressively getting worse. In an April 2008 statement to VA, the Veteran reported that his leg swelling due to diabetes and neuropathy had worsened. He attached a prescription for pressure stockings. The Veteran underwent a VA examination in December 2008. The Veteran reported symptoms of tingling and decreased sensation to temperature, especially with cold weather. Symptoms included numbness and pain in a "stocking distribution." Clinical examination revealed normal muscle strength and sensory function. There was no muscle atrophy. There was nerve dysfunction in the form of neuralgia, but no neuritis or paralysis. The examiner stated that the Veteran's neuropathy had significant effects on his occupation due to decreased mobility, lack of stamina, and pain. Effects on daily activities included mild effects on chores, shopping, recreation, and traveling, moderate effects on exercise, and prevention of engagement in sports. In his March 2009 notice of disagreement, the Veteran reported that his peripheral neuropathy causes him to fall. He provided photographs of falls he had suffered. A November 2009 letter from the Veteran's private neurologist stated that he had experienced tingling, burning pain, and numbness in the feet for the past 5 years. Private treatment records indicate that in November 2009, the Veteran underwent nerve conduction study. The study confirmed that the chronic tingling pain and numbness in the Veteran's feet and legs were not the result of lumbar spine radiculopathy but were consistent with diabetic neuropathy. In March 2010, the Veteran reported no major change in his neuropathic pain, which remained intense. He exhibited diminished light touch and vibration in the legs and feet to knee level. Bilateral ankle jerks were absent. There was no muscle atrophy. The Veteran underwent another VA examination in April 2010. Clinical examination revealed nerve dysfunction in the form of neuralgia, but no neuritis or paralysis. The examiner stated that the Veteran's neuropathy had no significant effects on his occupation. Effects on daily activities included mild effects on chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. Private treatment records reflect that in July 2010 the Veteran's podiatrist noted Semmes-Weinstein abnormalities indicative of severe neuropathy. In October 2010, his podiatrist noted that a nerve conduction velocity study revealed severe polyneuropathy of the bilateral lower extremities. An April 2011 letter indicates that the Veteran underwent a Berg Balance Scale test related to his neuropathy diagnoses in January 2011. The report indicates that the Veteran scored 33 out of 56 and is therefore considered a medial fall risk. The report found that the test supported the Veteran's reports that he often falls and is unable to balance himself. In a May 2011 statement, the Veteran took issue with the December 2008 VA examination based on its failure to perform any nerve conduction studies. For the period prior to November 9, 2009, the Board is persuaded that the evidence weighs in favor of a 40 percent rating for each lower extremity effective the date of the filing of his claim for an increased rating. Staging is not appropriate in this instance. While the Board recognizes that the findings of the December 2008 VA examination do not alone support ratings of 40 percent, the examiner did not consider the evidence that was the basis of the subsequent ratings. Specifically, the examination report was not based on a nerve conduction study or the Berg Balance Scale test. While both tests were performed after November 9, 2009, there is no indication in the evidence that the results of either test would have been different prior to November 9, 2009. Indeed, the Veteran had reported worsening of his condition at the time his claim was filed, and he reported falls as early as March 2009. For these reasons, the Board finds that the evidence warrants a 40 percent rating in each lower extremity effective the date of the Veteran's claim, March 20, 2008. For the entirety of the appeal period, the Board finds that ratings in excess of 40 percent are not warranted. Higher ratings are available for complete paralysis or severe incomplete paralysis with marked muscle atrophy. There is no evidence in the record indicating such symptoms. Indeed, the appellate briefs filed by the Veteran's representative in June 2012, October 2013, and December 2015 focus entirely on obtaining 40 percent ratings for the entirety of the appeal period, and make no mention of ratings in excess of 40 percent. It is thus unclear whether the Veteran even contends that ratings in excess of 40 percent are warranted. In any event, the Board finds no evidence of complete paralysis or marked muscle atrophy, and ratings in excess of 40 percent are therefore denied. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's peripheral neuropathy. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service connected disabilities, including poor balance and chronic tingling pain and numbness, are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his peripheral neuropathy is more severe than is reflected by the assigned ratings. As was explained in the merits decision above in denying higher ratings, the criteria for higher schedular ratings were considered, but the ratings assigned were upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, including leukemia and some forms of hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain diseases with a relationship to herbicide exposure, such as all chronic B-cell leukemias, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Service in the Republic of Vietnam includes service in the brown water offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hypertension The Veteran claims service connection for hypertension secondary to diabetes mellitus. In his March 2008 claim, the Veteran specified that his hypertension was secondary to diabetes mellitus. Service treatment records do not reflect any symptoms of or treatment for hypertension. Private treatment records include blood pressure measurements of 160/92 in February 1996 and 172/88 and 180/74 in March 1997. Also in March 1997, the Veteran was given a rule out diagnosis of diabetes mellitus which was subsequently confirmed. Blood pressure measurements were 174/92 and 176/96 in April 1997 and the Veteran was diagnosed with hypertension. He was prescribed medication, and in May 1997 his blood pressure was measured at 162/94 and 156/97. Subsequent blood pressure measurements include 152/82 in July 1997, 154/100 in November 1997, 156/86 in January 1999, 160/90 in June 1999, and 159/73 in October 1999. Blood pressure increased to 180/80 and 192/108 in November 1999, but reduced to 160/88 and 156/82 later in the month. Subsequent readings include 134/78 and 150/78 in January 2000, 200/91 in March 2000, 160/90 and 170/100 in January 2001, and 170/100 in March 2001. In an August 2000 letter, the Veteran's private treating physician noted that the Veteran had a long history of diabetes mellitus and of hypertension. In a March 2001 letter, the same physician stated that the Veteran's hypertension was complicated by his diabetes. The Veteran underwent a VA examination for his diabetes mellitus in October 2001. His blood pressure was measured at 130/80. There was no diagnosis of hypertension. Private treatment records show that the Veteran's hypertension was noted when being treated for diabetes in January and March 2008. There was no discussion of etiology. From September 2008 to April 2010, the Veteran was treated for benign primary hypertension. Treatment for hypertension continued throughout the appeal period, but etiology was not discussed in treatment records. The Veteran underwent a VA examination in December 2008. He reported high blood pressure progressively worsening. The examiner noted a 1998 date of onset. The examiner diagnosed hypertension, and noted the presence of hypertensive heart disease. The examiner opined that the Veteran's hypertension is less likely as not caused by or a result of the Veteran's diabetes. This opinion was based on the rationale that the diagnoses of diabetes and hypertension were made concurrently, and that although the Veteran's hypertension has elevated, it is not beyond what would be expected for a normal progression due to age. While the examination report indicated no kidney disease or dysfunction, and the record reveals no such renal problems, this information was not incorporated into the rationale for the opinion. In his March 2009 notice of disagreement, the Veteran disputed the VA examiner's diagnosis of hypertensive heart disease, stating that he does not have cardiovascular disease. The Veteran explained that he is under orders from his doctors to monitor and log his blood pressure along with his blood sugar. In a September 2009 letter, the Veteran's private treating physician stated that the Veteran was first diagnosed with diabetes mellitus in March 1997. Following this diagnosis the Veteran began displaying mild signs of hypertension as a secondary condition caused by his diabetes. An October 2009 letter from the Veteran's private cardiologist states that the Veteran's hypertension is a consequence of his diabetes. In a June 2010 letter, the cardiologist elaborated that the Veteran's records indicate that he was diagnosed with diabetes prior to being diagnosed with hypertension. The cardiologist opined that it is as likely as not that the Veteran's hypertension is a direct result of his diabetes mellitus. In a June 2010 letter, the Veteran's private treating physician opined that it was as likely as not that his hypertension was a direct result of his diabetes. This opinion was based on the rationale that his records indicate that he was diagnosed with diabetes prior to being diagnosed with hypertension. Private treatment records indicate that in July 2015 the Veteran was hospitalized for hypertensive urgency. At this time the Veteran was also suffering from shingles, urinary tract infection, acute renal failure and intermittent encephalopathy. With respect to hypertension, his physicians diagnosed him with uncontrolled episodes of hypertension with a documented hypotension secondary to autonomic neuropathy. The Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is related to his diabetes mellitus. Multiple treating physicians have treated the Veteran's hypertension as though it were related to diabetes mellitus. The Board recognizes that the December 2008 VA examiner stated that hypertension was unlikely related to diabetes because they were diagnosed at the same time. There is no explanation, however, as to why hypertension triggered by diabetes mellitus would be delayed, or by how much. The Veteran's treating physicians, in contrast, read the record as to say that diabetes was diagnosed first with hypertension shortly thereafter. There is no explanation as to why this goes against causation. Furthermore, even if hypertension did predate diabetes, the record shows that it worsened in the years immediately following diagnosis of diabetes. The Board acknowledges that the mechanism for how the Veteran's Diabetes may have caused or aggravated the Veteran's hypertension was not explained (i.e., through renal dysfunction or disease) by any of the VA or private medical evidence. The favorable opinions appear to suggest that the connection is due to some co-morbidity factor. While the medical evidence as a whole is inadequate, it is the inadequacy of the 2008 VA medical opinion that is most glaring. The Board believes that with all the time that has passed, an attempt now to elicit an adequate opinion would not be the best use of limited resources under the circumstances of this case, and may in fact be futile. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is related to his diabetes mellitus, and service connection is therefore granted. Periodontal Disease The Veteran claims service connection for periodontal disease. In his March 2008 claim, the Veteran specified that his periodontal disease was secondary to diabetes mellitus. Service treatment records do not reflect any symptoms of or treatment for chronic periodontal disease. Private dental records indicate that in September 2007 the Veteran asked his dentist about whether his gum disease was caused by his diabetes. The doctor explained that it was possible. A January 2008 letter from the Veteran's private dentist states that his gum tissue has consistently showed signs of inflammation despite good home care and dentist visits every three months. The dentist opined that if the Veteran's diabetes were better controlled it would help is oral health, because diabetes is known to effect periodontal conditions. A June 2010 letter from the Veteran's private dentist states that his gum tissue has consistently showed signs of inflammation despite good home care and dentist visits every three months. The dentist opined that the Veteran's periodontal problems are as likely as not caused by his diabetes. This opinion was based on the rationale that medical literature states that periodontal problems can be caused by diabetes. A January 2011 letter from the Veteran's private dentist opined that it was at least as likely as not that the Veteran's periodontal disease is caused by his diabetes. This opinion was based on the rationale that the American Academy of Periodontology and the American Dental Association state that there is a strong link between diabetes and periodontal disease. Additionally, the Center for Disease Control (CDC) states that people with diabetes have a three times greater chance of periodontal disease. The dentist further noted that diabetes is the only risk factor for periodontal disease exhibited by the Veteran of ten listed by the CDC. VA treatment records reflect that in May 2011 the Veteran was diagnosed with generalized moderate chronic periodontitis. The RO denied service connection for periodontal disease on the grounds that service connection is not available under the regulations for periodontal disease secondary to diabetes mellitus. In an October 2013 appellate brief, the Veteran's representative elaborated that the Veteran was requesting service connection for the purpose of establishing eligibility for outpatient dental treatment only under 38 C.F.R. § 3.381. Periodontal disease is not a compensable disability for service connection purposes. See 38 C.F.R. § 4.150. Service connection for treatment purposes is available for chronic periodontal disease under 38 C.F.R. § 3.381(b) if a veteran meets the requirements of 38 C.F.R. § 17.161. Pursuant to 38 C.F.R. § 17.161(h), dental treatment is authorized for those veterans in receipt of a schedular 100 percent combined rating or a TDIU. As the Veteran is in receipt of a TDIU effective the date he filed his service connection claim and was subsequently awarded a schedular combined rating of 100 percent, the Veteran is entitled to service connection for periodontal disease for the purpose of obtaining treatment. Sleep Apnea The Veteran claims service connection for sleep apnea secondary to diabetes mellitus and/or his acquired psychiatric disorder. In his August 2010 claim, the Veteran specified that his sleep apnea was secondary to diabetes mellitus. Service treatment records do not reflect any symptoms of or treatment for sleep apnea. Private treatment records reflect that the Veteran was first diagnosed with sleep apnea in 1993, and has been using a continuous positive airway pressure (CPAP) machine since then. In August 2000, the Veteran reported sleep difficulties which his physician attributed to weight changes. He was given new settings for his CPAP machine. In August 2010 the Veteran submitted a May 1999 article documenting a link between diabetes and sleep apnea. The article reported a study showing that adults who suffer from sleep apnea are three times more likely to also have diabetes. The article explained that this was the case because both diabetes and sleep apnea can be caused by excess weight. A second article, also provided in August 2010, reported that some studies suggested a relationship between the two conditions unrelated to excess weight. In an August 2010 letter, the Veteran's private treating physician opined that it is as likely as not that the Veteran's sleep apnea is a direct result of his service connected diabetes. This opinion was based on recent studies that linked sleep apnea to diabetes. The Veteran underwent a VA examination in April 2012. He reported that he had been diagnosed with sleep apnea since about 2002, and has used a CPAP machine since that time. With use of the CPAP, his condition is stable. His wife reported that he gags and snores badly when sleeping without the CPAP machine. The examiner diagnosed obstructive sleep apnea. The examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by or the result of diabetes. This opinion was based on the rationale that while sleep apnea and diabetes have overlapping risk factors, specifically obesity, but do not share a causal relationship. Rather than one causing the other, they more likely share a common cause of obesity. In a May 2012 statement, the Veteran's wife reported that the Veteran's sleep apnea causes significant fatigue. She reported her belief that his sleep apnea was caused by his diabetes and by his posttraumatic stress disorder (PTSD). The Veteran provided two more articles in May 2012 regarding his sleep apnea. One reported that many people who have diabetes also have sleep apnea. A second reported how the effects of PTSD and sleep apnea can compound when both are present. Private treatment records reflect that the Veteran underwent a sleep study in June 2012, confirming his diagnosis of obstructive sleep apnea. The Veteran underwent another VA examination in February 2015. He reported continued nightly use of his CPAP machine for severe obstructive sleep apnea. The examiner opined that it is less likely than not that the Veteran's sleep apnea was caused by or the result of any PTSD. This opinion was based on the rationale that sleep apnea was diagnosed in 2002 while an acquired psychiatric disorder was not diagnosed until 2007. The Board finds that the evidence weighs against a finding that the Veteran's sleep apnea is related to his diabetes mellitus, to an acquired psychiatric disability, or to service. Specifically, the Board finds the logic of the April 2012 VA examiner persuasive, in that it explains that the relationship between diabetes and sleep apnea is not causative but correlative, in that they share the common cause of obesity. The Board notes that the examiner came to this conclusion believing that the Veteran was diagnosed with sleep apnea in 2002, when in fact he was diagnosed in 1993, 4 years before being diagnosed with diabetes mellitus and 14 years before being diagnosed with any acquired psychiatric disorder. Furthermore, there is no evidence in the record indicating that the Veteran's sleep apnea was directly caused by service or had been aggravated since his diagnosis of either condition. The only worsening of the condition of record was attributed by his physicians to a change in weight and addressed through changing the settings of the CPAP machine. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's sleep apnea is related to his diabetes mellitus, to an acquired psychiatric disability, or to service. Service connection must therefore be denied. Leukemia The Veteran claims service connection for leukemia as the result of exposure to herbicides while serving in Vietnam. Service treatment records do not reflect any symptoms of or treatment for leukemia. VA treatment records show that in June 2005 the Veteran underwent a bone marrow biopsy in connection with his history of stage 3 melanoma. His oncologist concluded that the biopsy indicated that he probably had early myelofibrosis. There was no change in evaluation at a November 2005 follow-up. Private treatment records show that in September and November of 2011 the Veteran was monitored for his ongoing asymptomatic myelofibrosis and lambda chain monoclonal gammopathy. The Veteran claims that his diagnosis of myelofibrosis is a form of leukemia, and that he is therefore entitled to presumptive service connection based on exposure to herbicides in Vietnam. The Board finds that it need not determine whether myelofibrosis is subject to the herbicide presumption because the Veteran's disability has not manifested to a degree of 10 percent or more. The Veteran has not described any symptoms attributable to his myelofibrosis, and treatment records from 2011 describe the condition as asymptomatic. Because the Veteran's myelofibrosis has not manifested to a degree of 10 percent or more, service connection on a presumptive basis is not available. 38 C.F.R. §§ 3.307(a)(6)(ii), 4.118, Diagnostic Code 7703. Furthermore, the Veteran has only offered conclusory statements and has not provided any competent evidence indicating that his myelofibrosis was caused by exposure to herbicides. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's myelofibrosis is related to service or has manifested to a degree of 10 percent or more. Service connection must therefore be denied. Earlier Effective Date: Aid and Attendance The Veteran contends that he is entitled to an effective date prior to November 9, 2009, for an award of special monthly compensation (SMC) for aid and attendance. Entitlement to SMC is treated like a claim for increased compensation; it is part and parcel of an increased rating claim. See Akles v. Derwinski, 1 Vet. App 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Here, the Veteran claimed SMC in May 2011, less than one year after an April 2011 rating decision granted increased evaluations for peripheral neuropathy of the bilateral lower extremities. He was therefore granted special monthly compensation for aid and attendance on a factual basis as part and parcel of his claim for increased evaluations for his peripheral neuropathy. As such, the RO awarded an effective date of November 9, 2009, which was also the effective date for his increased ratings. The evidence underlying the Veteran's SMC for aid and attendance consists of May 2011 medical statements by his private treating physicians, VA examinations conducted in June and December of 2012, and statements by the Veteran and his wife reporting that he has required her aid and attendance since 2002. The only evidence supporting a factual need of aid and attendance arising on November 9, 2009, is the worsening of the Veteran's peripheral neuropathy being deemed effective that date combined with his and his wife's statements. As the Board in this decision grants increased ratings for peripheral neuropathy effective March 20, 2008, the Board likewise grants SMC for aid and attendance effective March 20, 2008. The Board notes that in his October 2013 brief, the Veteran appears to claim a second SMC based on factual need for aid and attendance, on the theory that his service-connected disabilities independently of each other each require aid and attendance. The Board finds that the regulations do not allow for multiple SMCs based on factual need for aid and attendance under 38 C.F.R. § 3.350(b)(3). Higher SMCs based on aid and attendance are not based on the number of disabilities requiring aid and attendance, but rather are based on the requirement of a higher level of professional care as defined by 38 C.F.R. § 3.352(b). To the extent that the Veteran requests an additional SMC under 38 C.F.R. § 3.350(b)(3) based on a factual need for aid and attendance, such a request is denied. The issue of whether the Veteran my receive a higher rate of SMC in addressed in the remand section below. [CONTINUED ON NEXT PAGE] ORDER Evaluations of 40 percent, but not in excess thereof, for peripheral neuropathy in each lower extremity, prior to November 9, 2009, are granted, subject to the laws and regulations governing the payment of VA benefits. Evaluations in excess of 40 percent for peripheral neuropathy in each lower extremity, from November 9, 2009, are denied. Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is granted. Service connection for periodontal disease for the purposes of obtaining treatment is granted. Service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disorder or diabetes mellitus, is denied. Service connection for myelofibrosis, claimed as B cell/hairy cell leukemia, to include as the result of exposure to herbicides while serving in Vietnam, is denied. An effective date of March 20, 2008, for an award of special monthly compensation based on the need for aid and attendance is granted, subject to the laws and regulations governing the payment of VA benefits. REMAND The Veteran claims additional SMCs for loss of use of feet and both buttocks. As SMCs are part and parcel of increased rating claims, the Board has jurisdiction over these claims without issuance of a statement of the case by the RO. See Akles v. Derwinski, 1 Vet. App 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). In his October 2013 appellate brief, the Veteran bases these SMC claims on the January 2011 Berg Balance Scale test discussed above. The test showed that the Veteran's lack of balance caused him to be subject to fall. Furthermore, the test showed that the Veteran was unable to rise from a seated position without assistance. See 38 C.F.R. § 3.350(a)(2-3). While the symptoms suggest loss of use of the feet and buttocks, the Board finds that VA examinations are necessary to determine whether such loss of use is the result of one or more service-connected disabilities. Specifically, while the Veteran suffers from service-connected peripheral neuropathy of the lower extremities, he also suffers from arthritis of the knees and has undergone bilateral hip replacement surgery, none of which is service-connected. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination of his feet and buttocks. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should determine whether the Veteran suffers from loss of use of each foot and the buttocks. If such loss of use is found, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such loss of use is related to the Veteran's service-connected disabilities. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs