Citation Nr: 1625007 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 07-11 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, to include non-proliferative retinopathy, from to September 18, 2012. 3. Entitlement to a disability rating in excess of 20 percent for right upper extremity peripheral neuropathy. 5. Entitlement to a disability rating in excess of 20 percent for left upper extremity peripheral neuropathy. 6. Entitlement to a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy. 7. Entitlement to a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy. 8. Entitlement to a separate rating for erectile dysfunction. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active military service from April 1969 to March 1971 and reportedly served in the United States Naval Reserve. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that granted service connection for diabetes mellitus and peripheral neuropathy of each extremity, and assigned initial 20 percent disability ratings for each disability (effective July 15, 2005), and declined to reopen the Veteran's previously denied claim for service connection for hypertension. The Board notes that although the Veteran did not file a notice of disagreement with the grants of service connection for peripheral neuropathy of each extremity made within the May 2006 rating decision, throughout the appeal the Board has continued to consider such disabilities to have been encompassed within the increased rating for diabetes mellitus claim; and the rating criteria for diabetes mellitus require consideration of additional compensable manifestations of that disease. The Board is merely separating out the peripheral neuropathy issues on the cover page for the sake of clarity. In March 2009, the Veteran testified during a hearing at the RO before a Veterans Law Judge no longer at the Board. A transcript of the hearing is of record. In a March 2012 decision, the Board reopened the Veteran's previously denied claim for service connection for hypertension and remanded his case to the Agency of Original Jurisdiction (AOJ) for further development. In August 2012, the Board remanded the Veteran's case to the AOJ to comply with his request to have a new hearing at the RO before a current member of the Board. Also in August 2012, and again in December 2014, the Board referred the matters of entitlement to service connection for bilateral hearing loss, and a bilateral eye disability including as due to service-connected diabetes mellitus, to the AOJ for development and adjudication. The AOJ has yet considered these new claims and they are, again, referred to the AOJ for appropriate development and adjudication. In September 2014, the Veteran testified before the undersigned. In December 2014, the Board remanded this matter for additional development. In a July 2015 rating decision, the Appeals Management Center (AMC) continued a 20 percent disability rating for diabetes mellitus, and effectively established service connection for non-proliferative retinopathy (effective September 18, 2012) as a noncompensable part of his diabetes mellitus. The Board notes, in passing, that per a December 2006 rating decision, the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) effective July 15, 2005. The issues of higher initial ratings for peripheral neuropathy of the upper and lower extremities; and a separate rating for erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension is not causally or etiologically related to any disease, injury, or incident in service; did not manifest within one year of service discharge; and was not caused or aggravated by service-connected diabetes mellitus or peripheral neuropathy. 2. The Veteran's diabetes mellitus has been manifested by the need for daily oral hypoglycemic agents and dietary restrictions; however, the evidence does not demonstrate regulation of physical activity as defined by VA regulations, there have not been episodes of ketoacidosis or hypoglycemic reactions or twice a month visits to a diabetic care provider. There was no vision change or incapacitating episodes due to diabetic retinopathy and no other diabetic complications (other than peripheral neuropathy). CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as secondary to diabetes mellitus or peripheral neuropathy, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 2. The criteria for an initial rating in excess of 20 percent for diabetes mellitus, with diabetic retinopathy, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.321, 4.79, 4.119, Diagnostic Codes 7913, 6006 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for diabetes mellitus, from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In the instant service connection case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2012 letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim, to include on a secondary basis, as well as his and VA's respective responsibilities in obtaining such evidence and information. That notice letter also provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Any timing error as to that notice was cured by the RO's subsequent readjudication of the claims, including in the July 2015 supplemental statement of the case. VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. Relevant to the duty to assist, the AOJ obtained and considered the Veteran's service treatment records as well as post-service VA and private treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that the AOJ attempted to obtain the Veteran's Social Security Administration (SSA) records and VA medical records from the Bakersfield VA clinic. However, as explained in the March 2013 VA memorandum, the AOJ was unable to obtain such records. Both facilities indicated that they could not provide such records. Also, per the prior Board remands, the AOJ obtained the Veteran's Navy Reserve records, and provided notice regarding secondary service connection (noted above), as well as outstanding VA medical records and VA examinations (discussed below). Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. As to the hypertension service connection claim, the Veteran underwent VA examinations in February 2006, December 2012 and June 2015. The latter VA examiners provided specific findings referable to the Veteran's alleged claim sufficient to for the Board to adjudicate such claims. The Board finds that such VA examinations and accompanying opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include her available service treatment records; and a physical examination. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Veteran underwent VA examinations in February 2006, December 2012, and June 2015 for diabetes. The Board finds that adequate information is associated with the claims file to rate the Veteran's diabetes mellitus claim (other than the peripheral neuropathy issues discussed in the REMAND portion of this decision). The Veteran has not alleged that the examinations were inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's diabetes mellitus, to include consideration of possible complications, as they include an interview with the Veteran, reviews of the record and full physical examinations, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Additionally, the Veteran testified at Board hearings in March 2009 and September 2014, with the latter hearing being before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Board employee who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the Veterans Law Judges noted the issues on appeal, as well as possible diabetes mellitus complications. Additionally, testimony regarding the Veteran's in-service and post service experiences as to hypertension, as well as, the symptoms he associates with this diabetes mellitus, including reports regarding retinopathy and erectile dysfunction. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as a result of the Veteran's testimony, the Board repeatedly determined that further development was necessary, to include the aforementioned development ordered in the Board's remands, such as new VA examinations and the obtaining of medical records. As noted in the preceding paragraph, there has been substantial compliance with such remand directives and, as such, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, there is no indication of additional notice or assistance that would be reasonably likely to aid the Veteran in substantiating his claims. Therefore, the Board may proceed to the merits of his claims. Service Connection A. Applicable Law Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, to include cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifesting to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. § 3.307, 3.309. Alternatively, when a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 13331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended during the pendency of the Veteran's appeal, effective October 10, 2006; however, the new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Veteran's who served in Vietnam during the Vietnam era are presumed to have been exposed to herbicides, including Agent Orange. Service connection is presumed for listed diseases occurring in veterans with such service. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309(e) (2015). Although the Veteran had service in Vietnam during the Vietnam era, hypertension is not among the listed diseases afforded presumptive service connection on that basis. Id. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran claims that his hypertension was caused or aggravated by his service-connected diabetes mellitus or peripheral neuropathy of the upper and lower extremities. In this regard, he does not allege, nor does the record reflect, that he first manifested such disorders during service or that such are otherwise related to service on a direct or, presumptive basis. During his March 2009 Board hearing, the Veteran reported that "I didn't have it [hypertension] until then I went in the service had no problem with being in the service, and had no problem with high blood pressure during the time I was in there or the time when I got out I didn't have no high blood pressure I did get it when I got diabetes." During his September 2014 Board hearing, the Veteran again reported that he did not have a blood pressure problem in service. He further indicated that he found out he had high blood pressure in 1999 or 2000, or later. The Veteran's service treatment records document that prior to enlistment, the Veteran's blood pressure readings were high and he was physical disqualified in January 1969. However, on re-evaluation a month later, the Veteran's blood pressure qualified him for enlistment. Service treatment records are negative for complaints, treatment, or diagnoses of referable to hypertension. The February 1971 separation examination revealed blood pressure of 118/72, and normal heart and vascular systems. There are numerous VA and private medical records documenting the Veteran's complaints of, or treatment for, hypertension. None of the medical records include medical opinions as to the etiology of hypertension. During a February 2006 VA examination, the Veteran reported that he had had hypertension in childhood especially around the 3rd or 4th grade. He was on blood pressure medications intermittently as a child, and had been disqualified from joining the military in 1968 due to blood pressure. He believed he had been examined a couple of months later, where they laid him on a table for eight hours and eventually cleared him because the final readings were normal. He had a 120-day delayed entry program into the Navy in April of 1969. Furthermore, he indicated that his blood pressure was alright in the service, and that he did not recall taking blood pressure pills in the service, but that he began taking blood pressure pills intermittently in 1972. He did not like the side effects of the diuretic at that time, because it caused erectile dysfunction. He believed he has been on blood pressure pills fairly regularly since 1998. The February 2006 VA examiner found that the Veteran's essential hypertension existed prior to service and was not aggravated by service. The examiner reported that in the absence of a diagnosis of renal artery stenosis or diabetic nephropathy it could not be stated that the essential hypertension, which existed in childhood, and well preceded the diagnosis of type 2 diabetes mellitus had been aggravated by diabetes mellitus. In March 2012, the Board reopened the Veteran's claim for service connection for hypertension. The Board found that the presumption of soundness applied, because hypertension was not noted on the examination when he was accepted for active duty. 38 U.S.C.A. § 1111 (West 2012); cf. Gilbert v. Shinseki, 26 Vet App 48 (2012) (holding that the presumption of soundness does not apply unless the claimed condition is shown in service). In December 2012, the Veteran underwent another VA examination. The examiner found that there were no medical records to support the Veteran's statements that hypertension pre-existed service. The VA examiner opined that there was no medical evidence that the Veteran's hypertension was related to (either incurred in or aggravated by) service, to include exposure to herbicides in Vietnam. She noted that as the Veteran was found to be "sound" at entrance to the Navy, hypertension did not exist. Furthermore, there was no evidence of hypertension in service and no medical evidence to support a relationship between herbicide exposure in Vietnam and hypertension, noting that hypertension had recently been rejected an Agent Orange presumptive condition due to lack of supporting medical evidence. Moreover, she opined that there was no medical evidence to support the contention that it was caused or aggravated by the Veteran's service-connected diabetes mellitus and/or peripheral neuropathy. She noted that the Veteran had normal kidney function and did not have diabetic nephropathy. She further explained that while pain from diabetic neuropathy might cause an occasional transient elevation of blood pressure, it would not cause sustained hypertension that is essential in nature. In June 2015, the Veteran underwent another VA examination. The examiner noted that a detailed review of the record showed the following chronology: 3 January 1969 indicated the Veteran had claimed un-treated hypertension. In the 1969 entrance exam, blood pressure was elevated with diastolic of 100 on 3 checks and the Veteran was temporarily disqualified with a 30 day recheck planned. In March 1969, a return for blood pressure checks noted values of 130/84, 136/84. The Veteran was untreated had been cleared for active service. Furthermore, all available service treatment records showed no indication of hypertension. Also, the 1971 separation physical showed blood pressure 118/72 and no medications or chronic illnesses; weight was 240 pounds. There were no medical records available from time of separation from service until 1983. The 1983 History and Physical exam showed that the 32-year-old veteran had hypertension and asked for general medical checkup. He had been treated with blood pressure medicine since 1973 continuously. The Veteran had reported that blood pressure issues had started since third or fourth grade; weight was currently greater than 300 pounds, blood pressure was 125/85 and 125/80 in the respective arms. A 1987 medical follow-up for hypertension included treatment; and his weight was 327 pounds. The June 2015 VA examiner found that available information showed hypertension was documented as of 1983, and did not exist at time of service separation in 1971. The examiner determined that while hypertension might have initially been medicated consistently in 1973, there were no records from that time-frame to corroborate that assertion. Also, hypertension had clearly preceded the diabetic diagnosis by more than 10-20 years, and was not secondary to diabetes mellitus. Hypertension was not diagnosed or treated during active service and was not a presumptive disease due to herbicide exposure. The examiner further noted that the Veteran had been on triple medications for hypertension, prior to his diabetic diagnosis, and there was no diabetic nephropathy or renal dysfunction currently apparent. That basement membrane disease caused by diabetes is the usual mechanism for hypertensive aggravation. The Veteran's hypertension was nicely controlled with current triple therapy not substantially different from that he had been on prior to diagnosis of diabetes. Therefore, the examiner found that it was less likely than not that hypertension was incurred in or caused by active service. Additionally, he opined that it was less likely than not that hypertension was proximately due to or caused by service-connected diabetes. Moreover, it was less likely than not that hypertension was aggravated beyond its natural progression by the service-connected diabetes. Analysis As a preliminary matter, the Veteran has current hypertension, as noted in his VA examinations. He also had exposure to herbicides. The remaining question is whether there is any link between the current hypertension and such exposure or any other in-service disease or injury; or to a service connected disease or disability. The only evidence of record supportive of the Veteran's claims is his contention that he has hypertension is related to his service-connected diabetes mellitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, i.e., whether the Veteran has the medically diagnosed disorders of hypertension, etiologically related to his service-connected diabetes mellitus, such questions fall outside the realm of common knowledge of a lay person as they involves medical subjects concerning the internal physical processes that extend beyond any immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, determining whether hypertension is related to diabetes mellitus requires knowledge of the endocrine system and how such impacts the cardiovascular system. There is no indication that the Veteran possesses specialized knowledge regarding such topics. Therefore, his opinion regarding the potential relationship between his claimed hypertension and diabetes mellitus are not competent and of little probative weight. VA examiners have provided competent opinions that hypertension was not caused or aggravated by diabetes. These opinions were based on the fact that hypertension pre-existed diabetes and detailed reviews of the record, which would have revealed aggravation. Indeed, the Veteran has not contended, or presented evidence, that the diabetes aggravated the hypertension. The Veteran's blood pressure readings before and after the onset of diabetes do not appear to be appreciably different. Accordingly, the evidence is against service connection on a secondary basis. The Veteran has at times contended that service connection was warranted for hypertension on the basis that it pre-existed service but was aggravated therein. His hearing testimony acknowledges; however, that there was no treatment for hypertension in service; and no findings of that disease during service. The service treatment records show normal blood pressure readings throughout. The medical opinions are all against a finding of in-service aggravation. If the Veteran's contentions were accepted; hypertension would clearly and unmistakably have pre-existed service. It would clearly and unmistakably not have been aggravated in service, because it was not shown in service and could not have increased in severity. As such his claim would fail. Furthermore, to the extent that the Veteran has claimed to have had hypertension since 1972, which presumably is a claim for presumptive service connection for hypertension within a year of his March 1971 discharge from service, the evidence is against such a history. The Veteran has provided numerous and conflicting reports of when his hypertension began after service. During his March 2009 Board hearing, the Veteran reported that he didn't have high blood pressure until he got diabetes, which was in 1999. Similarly, during his September 2014 Board hearing, he reported that it began in 1999 or 2000, or later. However, he reported to the February 2006 VA examiner that he began taking blood pressure pills intermittently in 1972. In contrast, as noted by the June 2015 VA examiner, the first medical record associated with the claims file of blood pressure treatment was a 1983 History and Physical wherein the Veteran reported having been treated with blood pressure medicine since 1973-well over a year following his March 1971 separation from service. On yet other occasions he reported that it existed prior to service. Given the inconsistent reports, his statements as to the history and chronicity of his disorder are not credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board further finds that the service treatment records and the post-service medical treatment, including VA and private medical records, are consistent and credible, and weigh against the credibility of more recent and unsupported contradictory statements from the Veteran. The documentation noted above carries far more weight, credibility and probative value than the recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such contemporaneous records are more reliable, in the Board's view, than the unsupported assertions of events now over a decade past, made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). As such, the credible evidence of record does not support finding that service connection on a presumptive basis is warranted. The competent medical opinions are consistent in finding that the Veteran's hypertension is not etiologically related to service, to include Agent Orange exposure, or his service-connected diabetes mellitus or peripheral neuropathy or aggravated by such service-connected disabilities. The December 2012 and June 2015 VA examiners' respective opinions are considered probative, as they are uncontroverted by any evidence of record, apart the Veteran's own implied assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Further, absent such countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not substitute its own medical opinions for those of medical professionals). For the foregoing reasons, service connection is not warranted for hypertension. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's service connection claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Initial Rating Applicable Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an initial rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under Diagnostic Code 7913, a 20 percent rating is warranted where diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for 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 evaluated. A 100 percent rating is warranted for 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 evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. These rating criteria are cumulative and in the conjunctive, meaning that each element of the criteria for a given level of disability must be present to warrant that evaluation. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Factual Background In his May 2006 notice of disagreement, the Veteran argued that a higher rating was warranted based on his use of medications. At the March 2009 Board hearing, the Veteran indicated that he was not insulin dependent at that time. At the time of the March 2014 Board hearing, the Veteran indicated that he was insulin dependent. The Veteran reported that he was treated every six or seven months. The Board notes that to the extent that the Veteran contends that higher disability ratings are warranted for his separately rated and service-connected bilateral upper and lower extremity peripheral neuropathy, such disabilities are addressed in the REMAND portion of this decision. Private medical records generally document that the Veteran received treatment for diabetes mellitus. A December 2002 Kaiser record noted that the Veteran had a history of diabetes mellitus, which the Veteran had been ignoring until then. The examiner recommended diet and exercise. A January 2003 Kaiser record indicated that the Veteran had diabetes mellitus and recommended weight loss and exercise, as well as, indicated that the Veteran was on metformin medication (which the Veteran indicated he took for his high blood pressure in his May 2006 notice of disagreement). VA medical records similarly indicate treatment in the form of medication. An August 2005 VA medical record documents that the Veteran was a new patient with uncontrolled diabetes mellitus since 1999; he was advised that he needed to follow a diet, but had not done so, and was on medication. An October 2014 VA medical record documented that the diabetes mellitus was well controlled and that long acting insulin had recently been decreased. In February 2006, the Veteran underwent a VA examination. At that time, he denied ketoacidosis or hypoglycemic reactions and hospitalization for such reactions. He followed a restricted diet. There were no restrictions of activity on account of the diabetes and he did not have to avoid strenuous activity to prevent hypoglycemic reactions. His current diabetic treatment was Metformin three times daily. He saw his diabetic care provider annually. He voiced no complaints of anal pruritus or loss of strength; he had no known diabetic retinopathy. He denied current impotence problems, though noted a lower than usual sex drive and ejaculation. The examiner diagnosed diabetes mellitus, with complications of peripheral neuropathy. A September 18, 2012 VA optometry note documented early non-proliferative diabetic retinopathy of each eye. In December 2012, the Veteran underwent another VA examination. The Veteran was treated with a restricted diet and oral hypoglycemic agents, but not insulin injections. Regulation of activities was not part of his medical management and he saw his diabetic care provider less than two times a month. He had no hospitalizations for or episodes of ketoacidosis or hypoglycemic reactions. The December 2012 VA examiner found complications of peripheral neuropathy and diabetic retinopathy, but not erectile dysfunction. In January 2013, the Veteran received a VA examination for the eyes. The examiner found that the Veteran's corrected and uncorrected vision was 20/40 or better, for both near and far. The examiner found diabetes with mild non-proliferative diabetic retinopathy of each eye, which did not affect his vision. Of all the eye disorders diagnosed, the retinopathy was the only one that the doctor found to be related to diabetes. In June 2015 the Veteran had another VA examination. The examiner noted that since the 2012 VA examination, insulin has been added in a long-acting form on a nightly dose. Sugars had not been well controlled at home and range in the mid-2000s. The Veteran denied any admissions or hypoglycemic reactions. He has been given glucose pills prophylactically that he has not had to take to this point. He remains on dietary precautions (that his weight exceeds 300 pounds,) and on both metformin and glipizide. The examiner found that the Veteran did not require regulation of activities was not part of his medical management; he saw his diabetic care provider less than two times a month. He had no hospitalizations for or episodes of ketoacidosis or hypoglycemic reactions. He had no progressive loss of weight and strength. The June 2015 eye VA examiner made findings similar to the January 2013 one, with mild non proliferative diabetic retinopathy of each eye being the only one associated with diabetes mellitus. The examiner found that it did not affect the Veteran's vision. Analysis Under Diagnostic Code 7913, a higher rating would require regulation of activities prescribed by a medical professional. Camacho; 38 C.F.R. § 4.119, Diagnostic Code 7913. The above discussion makes clear that medical professionals have actually recommended increased activity and that restriction or regulation of activities has never been recommended. The Veteran has not reported any contrary history. As such, the evidence is against a disability rating in excess of 20 percent for diabetes mellitus at any point during the appeal period. Next, the Board will review whether separate compensable ratings or increased ratings are warranted for diabetic complications other than the already separately rated peripheral neuropathy and erectile dysfunction, which is begin remanded. Note (1), following the rating criteria, indicates that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. As noted in the Introduction section, above, the Veteran presently receives separate disability ratings for peripheral neuropathy of each upper and lower extremity. Such disabilities will be addressed in the REMAND portion of this decision. The Board further finds that no additional separate compensable ratings are warranted for diabetic complications. The Veteran's diabetic retinopathy has been rated under 38 C.F.R. § 4.79, Diagnostic Code 6006. The General Rating Formula directs that a disability rated under Diagnostic Code 6006 be evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Notably, VA regulations related to the rating criteria for eye disabilities were amended on December 10, 2008. The December 2008 revisions are only applicable to claims received by VA on or after December 10, 2008. See 73 Fed. Reg. 66,543 -66, 554 (November 10, 2008). In the instant case, although the Veteran's service connection for diabetes mellitus and subsequent increased rating claim started from a June 2005 claim. However, service connection for diabetic retinopathy was not established as part of diabetes mellitus until July 2015 rating decision, effective September 18, 2012 (date of the first diagnosis of record). Therefore, only the current rating criteria apply. However, even for the rating criteria in effect prior to December 2008, there was no Diagnostic Code specifically designated for retinopathy. The Veteran's retinopathy was to be rated based on visual acuity and visual field. As discussed below, the Board will also consider rating the Veteran under visual acuity and visual field. Under the General Rating Formula for Codes 6000 through 6009, the Veteran is to be rated based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. A 10 percent rating is warranted for diseases of the eye with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent rating is warranted with the incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.79, General Rating Formula for Codes 6000 through 6009. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Codes 6000 through 6009 Note. Impairment of visual acuity is determined based on the corrected distance vision and/or impairment of visual fields. 38 C.F.R. §§ 4.76, 4.77. A noncompensable rating is assigned when vision is 20/40 or better in both eyes. 38 C.F.R. § 4.79. Regarding visual field impairment, compensable ratings are provided for loss of temporal half of visual field, loss of nasal half of visual field, loss of inferior half of visual field, loss of superior half of visual field, concentric contraction of visual field with the remaining field of 60 degrees at most, or unilateral scotoma. 38 C.F.R. § 4.79. Such regulations also provide evaluations for impaired eye muscle function based on diplopia. See 38 C.F.R. § 4.78(b) The December 2012 and June 2015 VA examination evidence does not show that such eye disability results in impairment of visual acuity or visual fields. In this regard, the Veteran's best corrected vision has consistently been noted to be better than 20/40 bilaterally. Furthermore, visual fields have been full with no deficits throughout the appeal period and there were no diplopia. Additionally, the record is void of any evidence that the Veteran has incapacitating episodes due to retinopathy and he has not contended otherwise. Finally, there is no allegation of impaired eye muscle function. Indeed, the December 2012 VA examiner specifically found that that the mild non-proliferative diabetic retinopathy "[d]oes not affect his vision currently." The June 2015 VA examiner made a similar finding. As such, a separate compensable rating for retinopathy is not warranted. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his diabetes mellitus and retinopathy. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal are more severe than the reflected by assigned disability ratings. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for each disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. To the extent that the Veteran contends that he had erectile dysfunction due to his diabetes mellitus, the June 2015 VA examiner made clear that it is not due to the service-connected diabetes. Rather, the examiner found it more likely due to the Veteran's other risk factors, including the combination of age greater than 50, obesity (with weight greater than 300 pounds), hypertension for greater than 40 years by veteran's assertion, hyperlipidemia, high-dose opiate therapy and chronic pain syndrome medications used to treat chronic pain/hypertension and documented hypoandrogenemia Furthermore, the Board does not find the Veteran credible to his report of chronic erectile dysfunction since there early 2000s. As noted by the June 2015 VA examiner, there was no documentation of erectile dysfunction complaint until late 2008. Even then, the Veteran did not report erectile dysfunction to the December 2012 VA examiner. A November 2003 Kaiser record also documents that the Veteran was specifically seen regarding a medical problem with his creative organ, but did not complain of erectile dysfunction at that time, but that he had full use of such organ. The Board further notes that there is no medical evidence of, or claims by the Veteran of, any additional complications of diabetes mellitus (which have not been discussed in this decision). The VA examiners indicated no additional complications than the ones discussed herein, including after examination of the skin and feet in June 2015 conjunction with the current claim. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities are not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disabilities of diabetes mellitus, with retinopathy. In this regard, the Board finds that the Veteran's symptomatology associated with each disability is fully addressed by the rating criteria. Specifically, the rating criteria addresses the severity of the diabetes mellitus as a whole, to include consideration of treatment required, such as that of a hypoglycemic agent and the necessity of frequent regular medical care by a diabetic care provider, and allows for separate ratings for diabetic complications. Also, in regard to the retinopathy, the rating criteria address loss of vision. In addition, the Veteran has not asserted symptoms not contemplated by the rating schedule in connection with his claims. As such, the rating schedule is adequate to evaluate the Veteran's disability picture for each disability. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). VA is also required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating. Johnson v. McDonald, at 1365-6. In the instant case the Veteran has been in receipt of a TDIU since the effective date of service connection for diabetes. There is no gap to fill. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As noted in the INTRODUCTION, the Veteran is already in receipt of a TDIU for the entire appeal period. The TDIU has been granted for the combined effects of all service connected disabilities. Accordingly, the record does not raise the question of entitlement to special monthly compensation on account of being housebound. Cf. Bradley v. Shinseki, 22 Vet. App. 280 (2008). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for an initial rating in excess of 20 percent for diabetes mellitus and separate, initial noncompensable rating for retinopathy. Also, the Board has found that the Veteran's erectile dysfunction is not part of his diabetes mellitus. Therefore, the benefit of the doubt doctrine is not applicable with respect to such claims, and they must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus and/or peripheral neuropathy, is denied. An initial rating higher than 20 percent for diabetes mellitus with non-proliferative retinopathy, is denied. REMAND As to the claims for increased rating for peripheral neuropathy of the upper and lower extremities, during his September 2014 Board hearing, the Veteran reported that his symptoms included shaking, that his legs and feet felt like they were constantly clamped in the appellant vice and that there was spasming of the hands and legs. An October 2014 VA medical record documented that the Veteran had a tremor that occurred when he holds food or drinks, which had an onset that coincided with the Veteran running out of labetalol. The provider found that it was likely to be essential tremor, previously masked by beta blocker usage. In a November 2014 VA medical record, the provider found the Veteran to have a tremor, with the constellation of neurologic signs and symptoms that might be attributed to diabetic peripheral neuropathy, but that the severity of the symptoms in a patient with generally well controlled HbA1c in the 7-8 range typically recommended raised concern, and consideration of Charcot-Marie-Tooth disease/hereditary motor and sensory disease was necessary. Although the Veteran received a new VA examination in June 2015 addressing the above disabilities, the examiner did not address the symptoms of tremor or cramping. An addendum opinion is necessary to address such matters. During a June 2015 VA male reproductive system examination, the examiner noted that the Veteran reported erectile dysfunction, which the Veteran related to his diabetic condition, since the early 2000's. The examiner noted that the Veteran had multiple risk factors for erectile dysfunction, and concluded that that diabetes could not be considered "the predominant contributor." Moreover, it was less likely than not that the Veteran's current erectile dysfunction was proximately due to or caused by the service-connected diabetic condition. Clarification is needed as to whether diabetes was a contributor, albeit not predominant, to erectile dysfunction; and whether diabetes aggravated the erectile dysfunction. Accordingly, the case is REMANDED for the following actions: 1. Ask the June 2015 VA examiner who evaluated the peripheral nerve examinations to review the claims file and this REMAND. If the June 2015 VA examiner is not available, the claims file should be provided to an appropriate medical clinician to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The VA medical opinion provider should offer an opinion on the following: Are the reported tremors, manifestations of the diabetic peripheral neuropathy; and if so, do they indicate a more severe level of disability than was noted on the June 2015 examination? If the tremors indicate a more severe level of disability, provide an opinion as to the severity of that disability in each extremity. 2. Ask the examiner who provided the June 2015 male reproductive examination to review the claims folder and this REMAND. If the June 2015 VA examiner is not available, the claims file should be provided to an appropriate medical clinician to render the needed opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The VA medical opinion provider should offer an opinion on the following: Was diabetes a contributing factor, even if not the predominant factor, to the current erectile dysfunction? If not a contributing factor to the onset of diabetes; does diabetes aggravate (permanently worsen) the erectile dysfunction? Please provide reasons for these opinions. After the above development has been obtained, the AOJ should perform any additional development it deems warranted to adjudicate the claims 3. When all necessary development has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs