Citation Nr: 1600896 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 13 26-930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral eye disability, including retinopathy and retinal atrophy. 2. Entitlement to an initial disability rating higher than 10 percent for service-connected tinnitus. 3. Entitlement to an initial compensable disability rating for service-connected hearing loss. 4. Entitlement to an initial disability rating higher than 20 percent for service-connected diabetes mellitus. 5. Entitlement to an initial disability rating higher than 60 percent for service-connected diabetic nephropathy with hypertension. 6. Entitlement to an initial disability rating higher than 10 percent for service-connected peripheral neuropathy of the right upper extremity. 7. Entitlement to an initial disability rating higher than 10 percent for service-connected peripheral neuropathy of the left upper extremity. 8. Entitlement to an initial disability rating higher than 10 percent prior to September 30, 2013, and 40 percent thereafter for service-connected peripheral neuropathy of the right lower extremity. 9. Entitlement to an initial disability rating higher than 10 percent prior to September 30, 2013, and 40 percent thereafter for service-connected peripheral neuropathy of the left lower extremity. 10. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction. 11. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 30, 2013. 12. Entitlement to an effective date prior to September 30, 2013 for eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C.A. Chapter 35. 13. Entitlement to an initial compensable disability rating for service-connected hemorrhoids. 14. Entitlement to service connection for a back disability. 15. Entitlement to service connection for a heart disability. 16. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of November 1999, September 2009, and February 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board has recharacterized the issues involving a bilateral eye disability to best reflect the broad scope of this claim as indicated by statements received from the Veteran and the medical evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issues of service connection for a bilateral eye disability, a back disability, a heart disability, and a skin disability and increased rating for hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. The 10 percent rating currently in effect is the maximum schedular rating for tinnitus, whether it is perceived in one ear or each ear. 2. Throughout the appeal, VA audiometric test results show the Veteran has had, at worst, level II hearing in both the right ear and the left ear. 3. Throughout the appeal, the Veteran's diabetes mellitus requires oral hypoglycemic agents and a restricted diet, but does not require regulation of activities. 4. Throughout the appeal, the Veteran's diabetic nephropathy with hypertension has not been manifested by persistent edema and albuminuria with BUN [blood urea nitrogen] 40 to 80mg%, creatinine of 4 to 8mg%, or generalized poor health. 5. Throughout the appeal, the Veteran's peripheral neuropathy of the right upper extremity is manifested by mild impairment of the median nerve. 6. Throughout the appeal, the Veteran's peripheral neuropathy of the left upper extremity is manifested by mild impairment of the median nerve. 7. The Veteran's peripheral neuropathy of the right lower extremity is manifested by no more than moderately severe impairment of the sciatic nerve during the entire appellate period. 8. The Veteran's peripheral neuropathy of the left lower extremity is manifested by no more than moderately severe impairment of the sciatic nerve during the entire appellate period. 9. The Veteran does not have penile deformity. 10. The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation for the entire appellate period. 11. TDIU has been awarded to the Veteran from March 11, 2009. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular rating higher than 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2015). 2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.385, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2015). 3. The criteria for an initial disability rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2015). 4. The criteria for an initial disability rating higher than 60 percent for diabetic nephropathy with hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7913 (2015). 5. The criteria for an initial disability rating higher than 10 percent for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8615 (2015). 6. The criteria for an initial disability rating higher than 10 percent for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8615 (2015). 7. The criteria for an initial disability rating of 40 percent, but no higher, prior to September 30, 2013 for peripheral neuropathy of the right lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 8. The criteria for an initial disability rating of 40 percent, but no higher, prior to September 30, 2013 for peripheral neuropathy of the left lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 9. The criteria for an initial disability rating higher than 40 percent from September 30, 2013 for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 10. The criteria for an initial disability rating higher than 40 percent from September 30, 2013 for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 11. The criteria for an initial compensable disability rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.31, 4.115b, Diagnostic Code 7522 (2015). 12. The criteria for a TDIU have been met for the entire appellate period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.16 (2015). 13. The criteria for an effective date of March 11, 2009, for DEA are met. 38 U.S.C.A. §§ 3500, 3501, 5110 (West 2014); 38 C.F.R. § 3.400, 3.807 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). Standard April 2009 and October 2009 letters satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran was provided multiple VA medical examinations in connection with the claims. The examinations are sufficient evidence for deciding the claims. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation. The examinations reports for the most part represent the most probative evidence for the claims. Thus, VA's duty to assist has been met. The Board finds that no further action is necessary to comply with VA's duties to notify and assist for the issue of a higher rating for tinnitus as the law is dispositive. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Claims Schedular Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Tinnitus The Veteran seeks an initial rating in excess of 10 percent for tinnitus, which is rated under Diagnostic Code 6260. Ten percent disabling is the maximum schedular rating available for tinnitus. See 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular ratings for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran's claim for such a benefit is without legal merit. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). Hearing Loss The Veteran's bilateral hearing loss is currently assigned a noncompensable rating. Evaluations of defective hearing range from noncompensable to 100 percent for service-connected bilateral hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. In cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will then be evaluated separately. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran was afforded a VA audiological examination in August 2009. He reported having hearing difficulty in general. The audiometric findings were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 30 35 50 50 41.25 88 LEFT 30 40 60 60 47.5 88 Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level II for both the right and left ears. Applying those values to Table VII, the designations yield a zero percent evaluation. The Veteran was afforded another VA audiological examination in July 2010. He again reported having hearing difficulty in general. The audiometric findings were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 35 35 50 55 43.75 96 LEFT 35 45 65 65 52.5 96 Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level I for both the right and left ears. Applying those values to Table VII, the designations also yield a zero percent evaluation. The Veteran was afforded a final VA audiological examination in November 2013. He reported difficulty hearing and understanding people if they are not talking loud enough. The audiometric findings were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 30 35 55 50 45 100 LEFT 35 50 65 60 55 100 Applying the puretone threshold average and speech discrimination results of the audiological examination to Table VI, yielded a value of level I for both the right and left ears. Applying those values to Table VII, the designations also yield a zero percent evaluation. Applying these values to Table VII, the designations yield a noncompensable evaluation based on the results of all the VA examinations throughout the rating appeal period. Although the Veteran asserts that his hearing loss is more severe than currently rated, his statements do not establish that a higher disability rating is warranted, as ratings for hearing loss are based on the mechanical application of results of regulation-mandated audiometry. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a compensable disability rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Diabetes Mellitus The Veteran was granted service connection for diabetes mellitus and was assigned a 20 percent rating under Diagnostic Code 7913. Diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, warrants a rating of 20 percent. Diabetes mellitus that requires insulin, a restricted diet, and regulation of activities, warrants a rating of 40 percent. Diabetes mellitus that requires 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, warrants a rating of 60 percent. Where diabetes mellitus requires more than one daily insulin injection, 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, a 100 percent rating is warranted. Id. Note (1) evaluate compensable complications of diabetes mellitus separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. Id. The Veteran is currently service connected for peripheral neuropathy of the upper and lower extremities, diabetic nephropathy with hypertension, and erectile dysfunction, which are considered below in this decision. The Veteran is also receiving special monthly compensation for his erectile dysfunction as secondary to his service-connected diabetes mellitus. No other complication related to diabetes mellitus has been shown that has not been service connected. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." The criteria are successive in nature and this manifestation must be met for the next higher rating. Medical evidence is required to show that the regulation of activities is medically necessary. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). In an August 2009 VA examination, the examiner stated that the Veteran's current diabetes treatment consisted only of oral medication and a restricted diet. He was diagnosed as having non-insulin dependent diabetes mellitus. It was noted that the Veteran was not restricted in ability to perform strenuous activities. In a September 2013 impairment questionnaire, the Veteran's private physician indicated that required treatment for his diabetes mellitus included only restricted diet and oral hypoglycemic agent. Regulation of activities and insulin were not indicated. The November 2013 VA examination revealed that the Veteran did not have regulation of activities as part of management of diabetes mellitus and frequency of visits to his diabetic care provider for episodes of ketoacidosis or hypoglycemia was less than 2 times per month with no hospitalizations for these conditions. In consideration of the evidence of record, the Veteran's diabetes mellitus has been controlled with oral medication and a restricted diet during the appellate period. The evidence does not show that the Veteran's condition requires regulation of activities that is necessary to warrant a higher rating. Because the rating criteria are successive in nature and requires regulation of activities, a higher rating is not warranted under Diagnostic Code 7913. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a compensable disability rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Diabetic Nephropathy with Hypertension The Veteran was granted service connection for diabetic nephropathy with hypertension and was assigned a 60 percent rating under Diagnostic Codes 7101-7541. Diabetic nephropathy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7541. This Diagnostic Code contemplates renal involvement in diabetes mellitus and directs the rater to evaluate this disability as renal dysfunction, which incorporates a hypertension evaluation. See 38 C.F.R. § 4.115a. Regarding renal dysfunction, a 60 percent evaluation is assigned for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent evaluation is assigned for persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation, the highest available schedular rating available, is assigned for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. In cases involving diabetic nephropathy with hypertension, the Board notes the provisions of 38 C.F.R. § 4.115, which address nephritis that originates from hypertension, and provide that "separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis on account of the close interrelationships of cardiovascular disabilities." The provision states that separate ratings would be permitted in cases where a kidney is absent, or where the claimant requires "regular dialysis." Based on the evidence of record, the Board finds that a higher initial rating is unwarranted as the criteria for an 80 percent rating (or even more severe 100 percent rating) have not been met during the appellate period. Though the Veteran's many health problems have caused him generalized poor health, the evidence does not indicate that his nephropathy causes his generalized poor health. Moreover, the criteria for an 80 percent rating under 38 C.F.R. § 4.115a, particularly those addressing laboratory test results, are not indicated here. The evidence has not shown persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%. During the August 2009 VA examination, the Veteran's BUN was 16mg% and creatinine was 1.6mg%. During the August 2010 VA examination, the examiner noted that the Veteran was on medication for his diabetic nephropathy with hypertension and had no history of stroke or heart disease. The Veteran's response to treatment was fair and his course since onset was stable. Lab tests showed BUN was 21mg% and creatinine was 1.31mg%. During the November 2013 VA examination, the Veteran's BUN was 21mg% and creatinine was 1.20mg% (from July 2013 lab results). The Veteran reported no kidney issues other than thinking he passed a kidney stone in July. Urine analysis at that time was positive for hematuria; however he had no pain and he was treated for a urinary tract infection. The examiner also noted that the Veteran had recurring proteinuria (albumin) and some edema related to his renal dysfunction, but he did not require regular dialysis. In sum, the evidence of record does not approximate the criteria for an increased initial rating. The Veteran is clearly in generalized poor health as the result of his many health problems. The evidence, however, does not indicate that the Veteran's nephropathy caused his generalized poor health. Moreover, November 2013 VA examination report indicated that the Veteran had only some edema. Significantly, laboratory results indicated albuminuria with BUN below 40 to 80mg%, and creatinine below 4 to 8mg%. Furthermore, the evidence does not show even more severe manifestations that would warrant a total 100 percent rating as even worse laboratory results are not shown, and kidney removal, regular dialysis, or markedly decreased function are also not shown. In light of these manifestations not being shown by the evidence, a separate rating for hypertension is not warranted as any impairment is contemplated by the 60 percent rating. In sum, the Board concludes that a rating in excess of 60 percent is not warranted. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a higher initial disability rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Peripheral Neuropathy of the Right and Left Upper and Lower Extremities The Veteran was granted service connection for peripheral neuropathy of the upper and lower extremities and was assigned a 10 percent rating for each extremity under Diagnostic Code 8615 for the upper extremities and Diagnostic Code 8620 for the lower extremities. In February 2014, the Veteran was assigned a 40 percent disability rating for each of the lower extremities under Diagnostic Code 8620, effective September 30, 2013. The Veteran is currently rated for his peripheral neuropathy of the upper extremities under Diagnostic Code 8615, which provides ratings for neuritis of the median nerve. Incomplete paralysis of the median nerve is rated under Diagnostic Code 8515, and neuralgia of the median nerve is rated under Diagnostic Code 8715. Diagnostic Code 8515 provides that mild incomplete neuritis is rated 10 percent disabling; moderate impairment is rated 20 percent (minor) or 30 percent (major) disabling; and severe impairment of the median nerve is 40 percent (minor) or 50 percent (major) disabling. Complete paralysis of the median nerve warrants a 60 percent (minor) or 70 percent (major) evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8615. The Veteran is currently rated for his peripheral neuropathy of the lower extremities under Diagnostic Code 8620, which provides ratings for neuritis of the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated under Diagnostic Code 8520, and neuralgia of the sciatic nerve is rated under Diagnostic Code 8720. Diagnostic Code 8620 provides that mild incomplete neuritis is rated 10 percent disabling; moderate incomplete neuritis is rated 20 percent disabling; moderately severe incomplete neuritis is rated 40 percent disabling; and severe incomplete neuritis, with marked muscular atrophy, is rated 60 percent disabling. Complete neuritis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the medical evidence of record, the Veteran is right-hand dominant for VA rating purposes. 38 C.F.R. § 4.69. During the August 2009 VA examination, the Veteran complained of having some numbness noted in fingers, but no burning or tingling, and having numbness, paresthesia, and burning type of pain on soles of feet beginning in 2004 or 2005 that have worsened. Physical examination showed normal radial pulse of both upper extremities and dorsalis pedis pulse and posterior tibial pulse were normal of the lower extremities. Neurologic examination revealed sensory loss of both upper extremities and deep tendon reflexes were zero of the bicep of the left upper extremity and Achilles of both lower extremities and were 1+ for bicep of the right upper extremity, triceps of both upper extremities, brachioradialis of both upper extremities, and patellar of both lower extremities. Sensation was dull on the lower third of the forearms and the surfaces of the hands and on the thigh and upper two thirds of the leg. There was absence of sense of light on the lower one third of the leg and all surfaces of the feet. Vibration test was normal of the elbows, dorsum of hands and knees. There was absence of vibration sense on the dorsum of the feet. No muscle atrophy was found. During the August 2010 VA examination, hands and feet examinations were grossly normal as were pulses of both upper and lower extremities. Reflexes were 2+ for right and left biceps, 1+ for right and left knee jerks, and zero for right and left ankle jerks. Sensory examination of the right and left upper extremities revealed vibration was decreased to fingers. Sensory examination of the right and left lower extremities revealed vibration was absent to toes, ankles, and lower two thirds of shins, and light touch was decreased to foot and ankle. During VA treatment in May 2011, the Veteran complained of having paresthesias and difficulty walking. He was diagnosed as having peripheral neuropathy. In statements dated September 2013 and October 2013, the Veteran's wife and daughter stated that the Veteran's feet are painful caused by aching and swelling, he is unable to wear shoes without having constant pain and he is unable to sit or stand for too long. In the November 2013 VA examination, the Veteran complained of having bilateral hand tingling, numbness and pain that are intermittent, but progressively worsening. In addition, he had weakness due to the decreased sensation. He also complained of having progressive bilateral foot pain described as a burning and stinging pain that is constant and waxes and wanes in severity and is associated with tingling and numbness. The Veteran reported that he had difficulty wearing shoes because of the pain and wore slippers at home. He was being treated with gabapentin 300mg po TID. The Veteran's symptoms was described as severe and constant pain in the lower extremities, moderate pain intermittent pain in the upper extremities, mild paresthesias and/or dysesthesias of the upper extremities, moderate paresthesias and/or dysesthesias of the lower extremities, moderate numbness of the upper extremities, and severe pain of the lower extremities. Strength and reflexes were normal except for 1+ reflexes of the ankles. Light touch was decreased in the left shoulder, left inner/outer forearm, bilateral ankles, and bilateral feet/toes. Vibration sensation was absent in the right and left lower extremities. The Veteran did not have muscle atrophy. The Veteran's incomplete paralysis of the median nerve was described as mild bilaterally and incomplete paralysis of the sciatic nerve was described as moderate bilaterally. It was noted that the Veteran had an EMG study in February 2011, which showed electrophysiological findings compatible with mild sensory motor polyneuropathy with mainly demyelinating features. Applying the rating criteria to the facts in the case, the Board finds that the criteria for a rating in excess of 10 percent are not met for the right and left upper extremities. Although the Veteran had sensory and reflex deficits, they were not of the severity to warrant a higher rating. The Veteran reported having bilateral hand tingling, numbness and pain that are intermittent. Although, sensation was dull on the lower third of the forearms and the surfaces of the hands and intermittent pain was described as moderate, the Veteran's incomplete paralysis of the median nerve was found to be mild bilaterally on examination. Given the evidence as outlined above, the Board finds that the current 10 percent ratings for each upper extremity adequately reflect the Veteran's current impairment due to the service-connected peripheral neuropathy of his upper extremities. Therefore, the evidence does not support the assignment of a disability rating in excess of 10 percent for the upper extremities under the applicable rating criteria. After review of the evidence, the Board finds that the criteria for 40 percent ratings are met for the right and left lower extremities prior to September 30, 2013, instead of only from that date. August 2009 and August 2010 VA examinations showed either decreased or absent light touch and vibration testing of the lower extremities and diminished reflexes. During VA treatment in May 2011, the Veteran complained of having paresthesias and difficulty walking. Based on the level of disability and symptoms experienced by the Veteran, a 40 percent disability rating for moderately severe impairment is met. Although this higher rating is warranted for the earlier rating period, the evidence does not show that the disabilities meet the criteria for evaluations in excess of 40 percent under Diagnostic Code 8620 during the entire appellate period. Although The Veteran's wife and daughter stated that the Veteran's lower extremities are so painful that he was not able to wear shoes, the Veteran's incomplete paralysis of the sciatic nerve was described as only moderate bilaterally. Also, in order to warrant a higher, 60 percent, disability rating, the Veteran's impairment must be severe with marked muscular atrophy. The VA examinations have not shown any atrophy of the lower extremities at any during the entire appellate period. Given the evidence as outlined above, the Board finds that the Veteran's bilateral lower extremity peripheral neuropathy cannot be properly described as more than moderately severe in degree. In sum, the preponderance of the evidence is against an initial rating higher than 10 percent for the Veteran's peripheral neuropathy of the right and left upper extremities. The evidence supports the assignment of an initial 40 percent disability ratings for peripheral neuropathy both the right and left lower extremities, but no more, prior to September 30, 2013, and is against an initial rating of 40 percent for peripheral neuropathy both the right and left lower extremities from September 30, 2013. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Erectile Dysfunction The Veteran was granted service connection for erectile dysfunction and was assigned a noncompensable rating under Diagnostic Codes 7599-7522. The use of two rating codes and a "99" denotes a rating by analogy. 38 C.F.R. §§ 4.20, 4.27. There is no diagnostic code which deals with erectile dysfunction exclusively. The Veteran's erectile dysfunction is currently rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522 (penis, deformity, with loss of erectile power). Diagnostic Code 7522 is deemed by the Board to be the most appropriate primarily because it is the only diagnostic code which includes loss of erectile power among its criteria. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate. Diagnostic Code 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. No other disability rating is provided by this diagnostic code. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. The Veteran is seeking an increased disability rating for his service-connected erectile dysfunction, which is currently evaluated as noncompensable under Diagnostic Code 7522. The Board notes that in the September 2009 rating decision, the Veteran was granted special monthly compensation under 38 U.S.C. § 1114(k) due to loss of use of a creative organ. In consideration of the record, the Board finds that private and VA medical evidence shows loss of erectile power. However, in order to obtain a compensable rating under Diagnostic Code 7522, deformity of the penis must also be demonstrated. Physical examination during the August 2009 VA examination revealed no deformity of the penis and examination of the testicles, prostate, scrotum, and seminal vesicles were normal. In addition, during the November 2013 VA examination, the Veteran requested that he not be examined; however, he reported normal anatomy with no penile deformity or abnormality. Therefore, the evidence does not show in this case showing complaint, treatment, or findings of penile deformity. Furthermore, with respect to VA benefits, special monthly compensation for loss of use of a creative organ was granted to compensate the Veteran for his erectile dysfunction. For the reasons stated above, the preponderance of the evidence is against a compensable rating for the Veteran's erectile dysfunction. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Extraschedular Consideration The Veteran's service-connected disabilities considered above result in multiple functional impairments. These impairments are contemplated by the rating criteria under which each has been evaluated, even when considered in the aggregate. This includes the hearing loss claim where the Veteran's hearing impairment on his daily life includes a general inability to hear and understand others, the basis of which is hearing loss. See Martinak, 21 Vet. App. at 447. Additionally, as discussed below, the Veteran is in receipt of a total disability rating for the entire rating appeal period. Thus, the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected disabilities are adequate, and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2015). III. TDIU A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16(a). The Veteran was granted a TDIU from September 30, 2013. The Veteran asserts that he has been unable to work prior to that date, so the appeal remains pending. Prior to September 30, 2013, and effective March 11, 2009, the Veteran was service connected for: tinnitus, assigned a 10 percent disability rating; hearing loss, assigned a zero percent disability rating; diabetes mellitus, assigned a 20 percent disability rating; diabetic nephropathy with hypertension, assigned a 60 percent disability rating; peripheral neuropathy of the right upper extremity, assigned a 10 percent disability rating; peripheral neuropathy of the left upper extremity, assigned a 10 percent disability rating; peripheral neuropathy of the right lower extremity, now assigned a 40 percent disability rating; peripheral neuropathy of the left lower extremity, now assigned a 40 percent disability rating; and erectile dysfunction, assigned a noncompensable rating. Accordingly, the Veteran meets the schedular criteria for a TDIU 38 C.F.R. § 4.16(a) throughout the rating period on appeal. The evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation prior to September 30, 2013. The Veteran has not worked since March 2008, when he retired from his employment in law enforcement. He previously worked in carpentry after the service for three years and then worked for the Alexandria Police Department for 20 years and for the Sheriff's office for four years before working for the U.S. Air Marshalls for 8 years flying illegal aliens back to their countries, from which he retired. The August 2008 VA audiological examination stated that the Veteran's diagnosed sensorineural hearing loss with subjective tinnitus caused significant effects on his occupation due to difficulty hearing. During the August 2009 VA examination, the Veteran's diabetes, peripheral neuropathy of the upper and lower extremities, neuropathy with hypertension, and erectile dysfunction were found to have significant effects on his occupation. The examiner stated that the Veteran would have problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the upper and lower extremities, and pain that result in increased tardiness and increased absenteeism. In a November 2009 statement, the Veteran's wife stated that the Veteran was limited in things he used to do. The Veteran was not able to drive anymore due to feet pain and cannot wear shoes long. He would wear shoes only to the doctor's office and then would immediately take them off. In November 2009, the Veteran submitted a statement describing why he had to retire. The U.S. Marshall Service was changing to a private security service and he would not have been able to pass the physical required for the job. In addition, his feet were getting worse and he was no longer able to walk long distances, stand for any long period of time, or wear shoes for any extended amount of time due to swelling, burning and stinging pain. During the January 2010 VA examination, the audiological examiner stated that the Veteran's hearing loss is at a degree that will affect his understanding in both quiet and noisy environments; however, workplace accommodations for his hearing loss as well as hearing aids would improve his work performance. The examiner opined that hearing loss, in and of itself, does not preclude an individual from obtaining gainful employment and a job with low background noise and one that does not rely on communication as a sole performance measure would be most ideal. In another VA opinion regarding TDIU based on the Veteran's physical disabilities, the examiner opined that the Veteran's diabetes mellitus, nephropathy, and peripheral neuropathy of the upper extremities did not significantly affect the Veteran's ability to work as the diabetes is well controlled, the nephropathy was mild, and examination showed some numbness to fingers. The examiner also opined that the Veteran's peripheral neuropathy would prevent his sustained employment in occupations that require prolonged standing or walking due to pain and burning in his feet shown on recent examination, but would not prevent participation in sedentary occupations. An August 2010 VA examiner opined that the Veteran's diagnoses prevented employment in all but sedentary occupations as his neuropathy severely limits standing and walking. The examiner did note that the Veteran last worked in 2008 largely due to his neuropathy of the feet. During VA treatment in May 2011, the Veteran complained of having difficulty walking due to his symptoms related to peripheral neuropathy. In a letter dated October 2011, the Veteran's private physician opined that the Veteran was not capable of gainful employment at that time due to progression of neuropathy and vascular disease as he cannot bear weight for more than brief periods due to pain in his feet. The examiner explained that there was no curative treatment for this, only symptom coverage and, therefore, it was not expected to improve. Because of these restrictions, he was not capable of gainful employment. In the October 2012 multiple impairment questionnaire that assessed the Veteran's disability level, which included diabetic nephropathy with hypertension, diabetes mellitus type II, and peripheral neuropathy affecting bilateral upper and lower extremities, the Veteran's private physician indicated that it would be necessary or medically recommended for the patient not to stand/walk continuously in a work setting. In the September 2013 impairment questionnaire, the Veteran's private physician again indicated that it would be necessary or medically recommended for the patient not to stand/walk continuously in a work setting. Although the January 2010 VA opinions found that the Veteran was able to perform hypothetical work positions with reasonable accommodations, including sedentary work, the examiners did not consider that the Veteran's occupation was in law enforcement. The Veteran's service-connected disabilities affect his ability to hear clearly and limit his ability to walk, drive, stand, and even wear shoes. Based on the severity of the combined effects of all of his service-connected disabilities prior to September 30, 2013, it is unlikely that he would be able to secure more than marginal employment in light of his work experience and education, which is supported by the private physician's opinion as well as the VA and private medical evidence regarding the level of his symptoms and the lay evidence of record describing the effect of the Veteran's disabilities on his functional ability. In summary, when reasonable doubt is resolved in the Veteran's favor, the Board concludes that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation prior to September 30, 2013. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, a TDIU is warranted from March 11, 2009, the date of claim and effective date of the awards of the service-connected disabilities. IV. Earlier Effective Date for DEA under 38 U.S.C.A. Chapter 35 The Veteran claims an earlier effective date for DEA benefits pursuant to 38 U.S.C.A., Chapter 35. The Veteran was awarded eligibility to EDA in a February 2014 rating decision, effective September 30, 2013, based upon the RO's finding that he was permanently unable, as of that date, to secure or follow a substantially gainful occupation, and hence, was entitled to a TDIU. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C.A. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C.A. § 3501(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C.A. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 3501(a)(7). In this case, since the effective date for DEA benefits is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, an effective date of March 11, 2009, for Chapter 35 benefits is warranted as the Veteran has been granted TDIU in this decision for the entire appellate period. ORDER An initial rating higher than 10 percent for service-connected tinnitus is denied. An initial compensable disability rating for service-connected hearing loss is denied. An initial rating higher than 20 percent for service-connected diabetes mellitus is denied. An initial rating higher than 60 percent for service-connected diabetic nephropathy with hypertension is denied. An initial rating higher than 10 percent for service-connected peripheral neuropathy of the right upper extremity is denied. An initial rating higher than 10 percent for service-connected peripheral neuropathy of the left upper extremity is denied. An initial rating of 40 percent prior to September 30, 2013, but no higher, for peripheral neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary awards. An initial rating of 40 percent prior to September 30, 2013, but no higher, for peripheral neuropathy of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary awards. An initial rating higher than 40 percent from September 30, 2013, for service-connected peripheral neuropathy of the right lower extremity is denied. An initial rating higher than 40 percent from September 30, 2013, for service-connected peripheral neuropathy of the left lower extremity is denied. An initial compensable disability rating for service-connected erectile dysfunction is denied. A TDIU is granted effective March 11, 2009, subject to the laws and regulations governing the payment of monetary awards. An effective date of March 11, 2009 for eligibility to DEA under 38 U.S.C., Chapter 35 is granted. REMAND The Veteran is claiming service connection for retinopathy, including as secondary to his service-connected diabetes mellitus. The medical evidence of record is unclear as to whether the Veteran is currently diagnosed with an eye disability related to diabetes mellitus. During VA treatment in June 2011 and March 2013, the Veteran was diagnosed as having stage 1 hypertensive retinopathy. However, during April 2011 VA treatment, the Veteran was diagnosed as having no diabetic retinopathy and was diagnosed as having retinal atrophy. During the November 2013 VA examination, the examiner found that the Veteran did not have diabetic retinopathy. As the evidence of record does not sufficiently show whether the Veteran has a diagnosed disability of retinopathy or another eye disability related to a service-connected condition, further development is necessary in the form of a VA examination and medical opinion. 38 C.F.R. § 3.159(c)(4). In November 1999, the RO granted service connection for hemorrhoids and denied service connection for a back disability, a heart disability, and a skin disability. Subsequently in November 1999, the Veteran submitted a timely notice of disagreement (NOD). The RO did not accept the NOD as valid to initiate an appeal because the Vet did not indicate the specific determinations that he disagreed with. Although the Veteran's statement did not clearly indicate which issues he disagreed with, the Board finds that the NOD was in fact valid as the Veteran expressed dissatisfaction with the November 1999 rating decision. The RO has not issued a statement of the case (SOC) on these issues. Where a NOD has been filed with regard to an issue and an SOC has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these issues are REMANDED for the following actions: 1. Issue the Veteran a SOC with respect to his claims for entitlement to an initial higher rating for hemorrhoids and service connection for a back disability, a heart disability, and a skin disability, to include notification of the need to timely file a substantive appeal to perfect his appeal on these issues. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine whether the Veteran has a diagnosis of retinopathy and the etiology of any diagnosed eye disability, including retinal atrophy. The claims file must be made available to the examiner for review. The examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed eye disability, including retinopathy or retinal atrophy, had its onset during or is related to active service. The examiner must also provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that any diagnosed eye disability, including retinopathy or retinal atrophy, is caused or aggravated by his service-connected diabetes mellitus and diabetic nephropathy with hypertension. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide an opinion based on the Veteran's specific case and consider the arguments presented by the Veteran and VA treatment records. A complete rationale must be provided for all opinions offered, and if an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 3. Finally, readjudicate the issue remaining on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs