Citation Nr: 1805669 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-07 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial compensable rating for onychomycosis. 5. Whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for hypertension. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for obstructive sleep apnea. 8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from July 1964 to August 1977. Subsequently, he served in the United States National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007, August 2011, and April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine and Baltimore, Maryland. Jurisdiction of the claims file rests with the RO in Baltimore, Maryland. In August 2015, the Veteran testified before the Board at a Central Office hearing. In September 2017, the Board informed the Veteran that the Veterans Law Judge he testified before was no longer employed at the Board and offered him the opportunity to testify at another hearing. The Veteran did not request another hearing within the allotted 30 days. As such, the Board may proceed with appellate review. The Board previously remanded the case for further development in December 2015. That development was completed, and the case has since been returned for appellate review. In a May 2017 rating decision, the RO increased the rating for peripheral neuropathy of the bilateral lower extremities to 20 percent each, effective July 16, 2009. Despite the increased disability ratings, the Veteran's appeal remains before the Board. AB v. Brown, 6 Vet. App. 35(1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the issues remain in appellate status. The Board has characterized the issues on appeal accordingly. The issues of entitlement to TDIU benefits and entitlement to service connection for bilateral hearing loss, sleep apnea, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's PTSD has been productive of occupational and social impairment which most nearly approximates reduced reliability and productivity; it has not been manifested by symptomatology of such severity as to result in occupational and social impairment with deficiencies in most areas. 2. For the entire appeal period, the Veteran's peripheral neuropathy of the left lower extremity has been manifested by no more than incomplete moderate paralysis; at no time did it more nearly approximate moderately severe or severe incomplete paralysis or complete paralysis. 3. For the entire appeal period, the Veteran's peripheral neuropathy of the right lower extremity has been manifested by no more than incomplete moderate paralysis; at no time did it more nearly approximate moderately severe or severe incomplete paralysis or complete paralysis. 4. An April 2005 rating decision denied the claim of entitlement to service connection for hypertension; the Veteran did not timely file a substantive appeal. 5. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for hypertension. 6. For the entire appeal period, the Veteran's onychomycosis has been manifested by less than 5 percent of the body or area affected, and has not required the use of systemic therapy. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for an initial compensable rating for onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7513 (2017). 5. New and material evidence has been presented to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria: Disability Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321 (a), 4.1(2017). In initial rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Factual Background and Analysis: PTSD The Veteran contends that he is entitled to an evaluation in excess of 50 percent for his service-connected PTSD. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's PTSD has not met the schedular requirements for the next-higher disability rating of 70 percent at any time during the pendency of this claim. At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected PTSD was rated 50 percent disabling, pursuant to the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which is included under the General Rating Formula for Rating Mental Disorders. 38 C.F.R. § 4.130. According to the General Rating Formula for Rating Mental Disorders, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The maximum 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) or the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). In evaluating the evidence, the Board also considers the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally reflects that a person is functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV, at 46. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score of 41-50 is assigned where there are serious symptoms, for example, suicidal ideation, severe obsessional rituals, or any serious impairment in social, occupational, or school functioning, for example, no friends, inability to keep a job. Id. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record to this time period and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned. The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2017); VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). The Veteran underwent a VA examination in November 2009. He reported feeling moderately depressed on a daily basis. The examiner noted that the Veteran was cheerful at the time of the examination and did not exhibit any type of depression. His PTSD was stable and he was not taking any medication to treat his PTSD. He was able to function independently and previously drove trucks for 10 years as a contractor in Africa. He recently married his wife in Africa, and was looking forward to her arrival to the United States. The examiner found that the Veteran was able to relate well to others. A mental status examination revealed that he was appropriately groomed, had good eye contact, had appropriate affect, maintained good personal hygiene, had well preserved insight and judgment, and had full orientation. His speech was spontaneous with normal rate, volume, and tone. The examination did not reveal thought process impairment, hallucinations, delusions, obsessions, compulsions, or suicidal or homicidal ideations. His mood was mildly to moderately anxious. There were no deficiencies of cognition or memory, but his concentration and attention were minimally impaired. The Veteran was afforded another VA examination in September 2011. The examiner found that the Veteran's PTSD remained at the same level of severity since the 2009 VA examination. His symptoms were moderate in severity and occurred constantly. He was not receiving mental therapy and did not take any medication for his PTSD. The Veteran's PTSD was stable enough that he was able to serve as a civilian contractor in different harsh environments. The examiner noted that he was currently unemployed due to the lack of available overseas contractual positions, however, the Veteran was not precluded from working. His PTSD symptoms minimally affected his work activity, but did cause mild issues with concentration and attention. With respect to social functioning, the Veteran had some difficulty relating to others, but he was not precluded from socializing. On mental status examination, he displayed good eye contact, adequate behavior, appropriate grooming, good personal hygiene, appropriate affect, full orientation, and adequate insight and judgment. There were no hallucinations, delusions, phobic or ritualistic behavior, homicidal or suicidal ideation, or deficiencies in memory or cognition. His mood was mildly to moderately anxious. His speech was spontaneous with normal rate, volume, and tone. A GAF score of 60 was assigned. At the August 2015 Board hearing, the Veteran testified that he was becoming more nervous. He stated that he was prescribed medication, but stopped taking it because he did not like the effects. The Veteran reported some suicidal thoughts, nightmares, and night sweats. The Veteran stated that he last worked four years ago as a school bus driver. He denied issues related to getting along with coworkers. He testified that it was hard to get along with his wife at times. The Veteran's most recent VA psychological examination was in June 2016. The examiner stated that his symptoms remained largely unchanged since the 2011 VA examination. However, he increased his alcohol consumption in the last two years. VA treatment records documented some anxiousness related to finances and marital problems. His symptoms included depressed, anxious, or agitated mood; anxiety, suspiciousness; chronic sleep impairment; and mild memory loss. The Veteran reported that he was married to his wife for 8 years and that he had two previous divorces. He described a good relationship with his son and maintained contact with his siblings. He stated that he did not like being around people and preferred to stay to himself. With respect to occupational impairment, he currently owned a mechanic shop. He no longer completed the mechanic work, but hired someone else to do the work. He also recycled cans and bottles on a part time basis. He reportedly stopped working as a fulltime civilian contractor in 2002. His speech was spontaneous with normal rate and somewhat mumbled tone. He displayed adequate hygiene; logical, coherent, and goal oriented thought processes; mildly impaired cognitive functions in regard to concentration and memory issues; an agitated mood; full orientation; and fair insight and judgment. There were no hallucinations, delusions, obsessions, compulsions, phobias, or suicidal or homicidal ideations. The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care, and conversation. As mentioned above, the Veteran's PTSD was assigned a 50 percent disability rating. Therefore, to establish entitlement to the next higher rating, the evidence must demonstrate that the Veteran's PTSD symptoms caused or most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). The Board finds that the competent, credible, and probative evidence establishes that he is not entitled to a disability rating in excess of 50 percent for his PTSD. The Veteran's symptoms are neither productive of total occupational and social impairment nor occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. The June 2016 VA examiner concluded that the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care, and conversation. The medical evidence shows that his PTSD was manifested by moderate or anxious mood; mild impairment of memory, attention, and concentration; some difficulty relating to others; nervousness; nightmares; night sweats; anxiety; suspiciousness; and chronic sleep impairment. The Board finds that such symptoms are contemplated in the 50 percent rating. With regard to social impairment, the November 2009 VA examination report indicated that the Veteran was looking forward to his new wife coming to the United States from Africa. He also had a good relationship with his son and remained in contact with his siblings. The September 2011 VA examiner found that the Veteran had some difficulty relating to others, but that he was not precluded from socializing. With regard to occupational impairment, VA examiners noted that the Veteran was able to work independently as a contractor overseas in many harsh environments. His PTSD symptoms mildly impacted his concentration, attention, and memory. The Veteran testified that he did not have problems getting along with coworkers. Moreover, at the June 2016 VA examination, the Veteran reported that he was able to own and manage a mechanic shop and work part time collecting cans. Additionally, the medical evidence showed adequate judgment, normal speech, and logical thought processes. The VA examiners noted there was no suicidal or homicidal ideation. He testified that he had some suicidal thoughts, but explained that he usually thought of ways to avoid such thoughts. The evidence does not reflect obsessional rituals which interfere with routine activities, intermittently illogical speech, near-continuous panic or depression, periods of violence, spatial disorientation, difficulty adapting to stressful situations, or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. In addition, the September 2011 VA examiner assigned a GAF score of 60, which indicates moderate symptoms. Based on the foregoing, a rating in excess of 50 percent is not warranted for any distinct period during the pendency of this appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411; see Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board recognizes that the Veteran believes he is entitled to an initial disability evaluation in excess of 50 percent for his service-connected PTSD. However, at no time during the pendency of this claim has the Veteran provided evidence of symptomatology of such severity as to result in the degree of occupational and social impairment envisioned by a higher schedular evaluation of 70 percent. The Veteran's representative also provided no argument to support a higher schedular evaluation of 70 percent in its Informal Hearing Presentation of January 2018. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 50 percent for PTSD must be denied. Factual Background and Analysis: Peripheral Neuropathy The Veteran contends that he is entitled to evaluations in excess of 20 percent for his service-connected peripheral neuropathy of the lower extremities, bilaterally. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran has not met the schedular criteria for an evaluation in excess of 20 percent for peripheral neuropathy of either lower extremity at any time during the pendency of this claim. The Veteran's bilateral peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 20 percent is assigned for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis with foot dangle and drop, no active movement possible of muscles below the knee, or flexion of knee weakened or (very rarely) lost. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.424a (2017). The Board observes the words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). The Veteran underwent a VA examination in November 2010. He described feeling tingling and numbness in his feet. Examination revealed that there was no sensory loss. He was able to feel the monofilament in the toes. He also had intact proprioception and could distinguish upgoing to downgoing toes. The examiner found that vibration sensation was equivocal because partly he could feel and occasionally he could not feel. The examiner noted that there were no specific nerves involved. He was afforded another VA examination in September 2011. His symptoms included intermittent, diffuse numbness and tingling of both feet. Sensation showed mild decrease in pin, touch, vibration, proprioception, 2-point discrimination, and double simultaneous stimulation of both feet. Deep tendon reflexes were normal. Motor strength was 5/5 with no drift, tremor, or atrophy. The diagnosis was diabetic neuropathy affecting the lower extremities, mild degree. March 2012 VA treatment records indicated mild neuropathy of the lower extremities, left greater than right. Evaluation showed diminished monofilament, decreased vibration, and absent Achilles reflexes. In August 2015, the Veteran testified that his peripheral neuropathy was manifested by numbness and feeling like there were pads on his feet. The Veteran's peripheral neuropathy was most recently examined in July 2016. He described burning dysesthesias on the soles of his feet. His lower extremity symptoms included severe intermittent pain, severe paresthesias and/dysesthesias, and severe numbness. Strength was normal, deep tendon reflexes were normal in the knee and ankle, light touch/monofilament testing was decreased in the foot/toes, and vibration sensation was decreased in the bilateral lower extremities. There was no muscle atrophy. The examiner noted trophic changes described as decreased hair below the knees. The diagnosis was mild bilateral lower extremity peripheral neuropathy. The examiner noted that due to the stocking distribution sensory loss involving both entire feet, specific nerves could not be determined and an electromyogram was not indicated to further define. Furthermore, there was no associated weakness on examination. The examiner concluded that the Veteran's bilateral lower extremity peripheral neuropathy was judged to be mild in severity due to sensory/pain complaints without objective weakness. Initially, the Board finds that the Veteran is not entitled to an 80 percent rating under Diagnostic Code 8520 because there is nothing in the medical evidence to suggest complete paralysis of either lower extremity. Furthermore, the Board finds that a rating in excess of 20 percent is not warranted for either of the lower extremities based on incomplete paralysis. The VA examiners and VA treatment providers consistently found that his peripheral neuropathy symptoms were mild. Although the July 2016 VA examination report documented severe intermittent pain, severe paresthesias and/dysesthesias, severe numbness, decreased light touch/monofilament, and decreased vibration sensation, strength testing was normal, deep tendon reflexes were normal, there was no objective evidence of weakness and there was no muscle atrophy. Based on the foregoing, a rating in excess of 20 percent is not warranted for any distinct period during the pendency of this appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8520; see Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board recognizes that the Veteran believes he is entitled to evaluations in excess of 20 percent for his peripheral neuropathy of the bilateral lower extremities. However, at no point during the pendency of this appeal has the Veteran or his representative provided any evidence to indicate that the Veteran's symptomatology is of such severity as to warrant a higher schedular evaluation. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 20 percent for peripheral neuropathy of the bilateral lower extremities must be denied. Factual Background and Analysis: Onychomycosis The Veteran also contends that he is entitled to a compensable evaluation for his service-connected onychomycosis. However, as outlined below, at no time during the pendency of this claim has the evidence demonstrated that the Veteran's disability meets the schedular criteria for a compensable evaluation. The Veteran's onychomycosis is rated under 38 C.F.R. § 4.118, Diagnostic Code 7513. Under Diagnostic Code 7513, dermatophytosis, to include tinea pedis of the feet, is to be rated as disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability. See 38 C.F.R. § 4.118, Diagnostic Code 7813. The Board finds that Diagnostic Code 7813 is the most analogous rating code to the Veteran's disability, and in fact Diagnostic Code 7806 takes into account the Veteran's service-connected symptoms. Under Diagnostic Code 7806, a noncompensable rating is warranted for conditions with less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating for conditions affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or where there has been a requirement of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for conditions affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or if there has been a requirement of systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent schedular rating is assigned if the condition affects more than 40 percent of the entire body or more than 40 percent of exposed areas; or where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. In Johnson v. McDonald, 27 Vet. App. 497 (2016) the United States Court of Appeals for Veterans Claims (Court) held that the language of Diagnostic Code 7806 provides that the phrase "systemic therapy such as corticosteroids" unambiguously included topical corticosteroids. In July 2017, the Federal Circuit issued an opinion that reversed the Court's holding. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit agreed with the VA Secretary that the Court erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" The Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. During the appeal period, Veteran was afforded VA skin examinations in November 2009, September 2011, and June 2016. His big toes and little toes were affected, with limited involvement of the other nails. The nails were dark, thick, discolored, and deformed. The skin disorder involved less than five percent of his total body surface and none of his exposed body surface. The examiners noted the use of Lamisil topical antifungal cream on a daily basis in November 2009 and two to three times a week in September 2011. In June 2016, it was noted that the Veteran stopped using Lamisil, but was seen by a podiatrist every two to three months to have his nails clipped. The Board finds that a compensable rating is not warranted for onychomycosis. The evidence of record consistently showed that his onychomycosis affected less than 5 percent of the affected area and none of the exposed area. Furthermore, the Veteran did not use systemic therapies, but instead used a topical antifungal cream to treat his symptoms. There is no indication that the topical antifungal cream was administered on a large enough scale to affect the whole body. Based on the foregoing, a compensable rating is not warranted for any distinct period during the pendency of this appeal. See 38 C.F.R. § 4.118, Diagnostic Code 7513; see Hart v. Mansfield, 21 Vet. App. 505 (2007). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to a compensable rating for onychomycosis must be denied. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied service connection for hypertension in April 2005. The RO determined that there was no evidence to show that his hypertension was incurred in or caused by his active duty service. It was noted that the Veteran received a diagnosis of hypertension in 1994, well after his discharge from active duty. The Veteran submitted a notice of disagreement in May 2005 and a statement of the case was issued in August 2006. The Veteran did not timely perfect his appeal and the decision is final. 38 C.F.R. § 20.302 (2017). Evidence received since the April 2005 rating decision includes the Veteran's statements and a November 2009 VA examination. The November 2009 VA examination report indicated that his hypertension diagnosis preceded his service-connected diabetes mellitus diagnosis. In August 2015, the Veteran testified that his hypertension was incurred during a period of ACDUTRA or INACDUTRA. Accordingly, reopening of the claim for service connection for hypertension is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 50 percent for PTSD is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to an initial compensable rating for onychomycosis is denied. New and material evidence having been received, entitlement to service connection for hypertension is reopened. REMAND Hearing Loss The Veteran asserted that his currently diagnosed bilateral hearing loss was caused by his active duty service or by a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records are negative for a hearing loss disability on enlistment and separation from service active duty service. The Board notes that an October 1973 audiogram revealed some hearing impairment, however, his June 1977 separation audiogram showed 0dB for all of the tested frequencies. The Veteran's service personnel records document periods of ACDUTRA and INACDUTRA from October 1989 to May 1998. Notably, some hearing impairment was revealed in audiograms completed in October 1989 and September 1994. The Veteran was afforded a VA audiological examination in July 2016. It was noted that the Veteran's in-service noise exposure included diesel engines, combat, and large ammunition. He was also exposed to noise when working as an overseas contractor for three to four years, working as a lawn mower mechanic for 20 years, hunting for 60 years, and operating motorcycles for 50 years. The examiner opined that the Veteran's bilateral hearing loss was not caused by military service. The opinion was supported by the Veteran's service treatment records showing hearing within normal limits on his July 1964 enlistment examination and his June 1977 separation examination. The examiner found no permanent threshold shifts during service, and also noted that the last audiogram in his file in September 1994 revealed hearing within normal limits. Upon review, the Board finds that the VA examination is inadequate for adjudication purposes. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Initially, the Board notes that the examiner did not fully discuss the Veteran's periods of ACDUTRA and INACDUTRA. While the examiner stated that hearing was normal in September 1994, audiograms in October 1989 and September 1994 reflected clinical hearing loss (i.e., over 20 decibels) per Hensley, 5 Vet. App. at 159. Additionally, the medical opinion appeared to be based on the lack of a hearing loss disability for VA purposes at the time of separation from service. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. It would have been helpful had a VA examiner brought his/her expertise to bare in this case regarding medically known or theoretical causes of hearing loss and described how hearing loss that result from noise exposure or acoustic trauma generally present or develop in most cases, as distinguished from how hearing loss develop from other causes, in determining the likelihood that current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. Therefore, the Board finds that a clarifying medical opinion is needed to determine the nature and etiology of the Veteran's hearing loss. Accordingly, the Board finds that the Veteran's claim must be remanded for another medical opinion. Sleep Apnea The Veteran asserted that his currently diagnosed sleep apnea had its onset during service. At the August 2015 Board hearing he described his in-service symptoms such as snoring and trouble sleeping. He also provided testimony to suggest that his sleep apnea was related to his exposure to diesel during service. In October 2015, he submitted a buddy statement from his ex-wife indicating that he snored and appeared to stop breathing at night. The Veteran underwent a VA examination in July 2016. The examiner opined that his sleep apnea was less likely as not incurred in or caused by service. The rationale for the opinion was that the claims file did not include complaints indicative of sleep apnea during military service. The examiner also explained that he was diagnosed with sleep apnea 29 years after service and noted a significant increase in weight in the interim. The Board finds that the medical opinion is inadequate for adjudication purposes. The VA examiner did not consider the lay statements of the Veteran and his ex-wife concerning his in-service sleep symptoms and that his exposure to diesel during service caused his sleep apnea. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury, but relied on the service treatment records to provide a negative opinion). Accordingly, the claim must be remanded in order to obtain another VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312. Additionally, during a June 2016 VA psychological examination, it was noted that the Veteran's sleep apnea diagnosis was relevant to understanding his service-connected PTSD. The June 2016 VA examiner noted that his PTSD symptoms included sleep impairment and that his sleep apnea negatively affected his ability to get restorative sleep. On remand, the VA examiner must also address whether his currently diagnosed sleep apnea was caused or aggravated by his service-connected PTSD. Hypertension Service treatment records from the Veteran's National Guard Service documented the Veteran's diagnosis of hypertension. Service personnel records noted that the Veteran had periods of ACDUTRA and INACDUTRA from October 1989 to May 1998. In August 2015, the Veteran testified that he did not have hypertension when he entered the National Guard, but that he did have a diagnosis when he left. He stated that he had elevated blood pressure readings while serving in the National Guard. He also indicated that he did not have a diagnosis of hypertension during his active duty service from July 1964 to August 1977. In light of the above, the Board finds that the Veteran is entitled to a VA examination to determine the etiology of his currently diagnosed hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). TDIU The Veteran's employment and educational history is not entirely clear from the evidence of record. Initially, it was noted that the Veteran worked as an overseas contractor driving trucks, but stopped working in 2005. However, during his September 2011 VA psychological examination, it was noted that the Veteran last worked as an overseas contractor in 2009 and was disappointed because there were no longer any contractual opportunities overseas. The VA examiner noted that the Veteran's PTSD minimally affected his work activity. The November 2010 and September 2011 VA neurological examinations indicated that the Veteran was restricted to light physical and light sedentary work. At his August 2015 hearing, the Veteran stated that he previously worked as a school bus driver, but stopped working about four years prior. In a June 2016 VA psychological examination, it was noted that he owned his own auto mechanic shop, but hired someone to do the physical work. He also worked part time recycling cans and bottles. A July 2016 VA neurological examination report showed that his service-connected peripheral neuropathy did not impact his ability to work. The Board finds that a remand is required to obtain a completed VA Form 21-8940 and a VA examination to assess the functional effects that the Veteran's service-connected disabilities have on his ability to secure and follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and ask him to provide a complete history of his education and occupational experience, to include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Then, the RO or the AMC should obtain an addendum medical opinion from the examiner who conducted the Veteran's July 2016 examination. If this examiner is no longer available, then the claims file must be returned to a physician of similar expertise. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the detailed list of the Veteran's dates of active duty, ACDUTRA, and INACDUTRA. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether the bilateral hearing loss at least as likely as not (50 percent probability or greater) originated during service or is otherwise related to service, to include any period of active duty, ACDUTRA, and INACDUTRA. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner must consider and discuss the significance, if any, of the October 1973 audiogram. The examiner must also discuss the hearing impairment shown in the October 1989 and September 2014 audiograms, the Veteran's statements concerning the onset of his bilateral hearing loss, and the Veteran's post-service noise exposure. The examiner is advised that the absence of a hearing loss disability in the service treatment records does not in and of itself preclude service connection. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 4. Then, the RO or the AMC should obtain an addendum medical opinion from the examiner who conducted the Veteran's July 2016 examination regarding sleep apnea. If this examiner is no longer available, then the claims file must be returned to a physician of similar expertise. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. Following a review of the relevant records and lay statements, the examiner must state an opinion with respect to the following: (a) Whether the sleep apnea at least as likely as not (50 percent probability or greater) originated during service or is otherwise related to service, to include his exposure to diesel. The examiner is directed to consider and discuss the lay statements that the Veteran snored during service and that his sleep apnea was caused by his exposure to diesel. (b) Whether the Veteran's sleep apnea is at least as likely as not caused or aggravated by his service-connected PTSD. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 5. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the detailed list of the Veteran's dates of active duty, ACDUTRA, and INACDUTRA. Based on the results of the clinical examination, and with consideration of the Veteran's pertinent history, statements and in-service treatment reports, the physician must express an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the hypertension began during, is etiologically related to, or was permanently worsened by any period of ACDUTRA or any incident therein. The examiner is directed to consider and discuss the Veteran's lay statements regarding the incurrence of his hypertension and the National Guard service treatment records noting a diagnosis of hypertension. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 6. The RO or the AMC should schedule the Veteran for a VA examination by a vocational specialist to assess the functional effects of his service-connected disabilities on his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner is asked to discuss the functional effects that the Veteran's service connected disabilities, alone or in combination, have on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The examiner must not consider the Veteran's age or any non-service connected disabilities. 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs