Citation Nr: 18149317 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-20 285 DATE: November 9, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for heart disease is denied. Service connection for Hepatitis B is denied. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. An initial rating in excess of 10 percent for tinnitus is denied. A rating in excess of 20 percent for diabetes mellitus type II (diabetes) with retinopathy and erectile dysfunction is denied. A rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity is denied. A rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity is denied. Total disability based on individual unemployability (TDIU) is denied. An effective date prior to January 17, 2017, for the grant of service connection for tinnitus is denied. A 30 percent rating for diabetic peripheral neuropathy of the right upper extremity is granted effective January 20, 2015. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Entitlement to service connection for carpal tunnel syndrome (CTS) of the right upper extremity is remanded. Entitlement to service connection for CTS of the left upper extremity is remanded. Entitlement to an effective date prior to October 10, 2012, for the grant of a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity is remanded. FINDINGS OF FACT 1. In an April 2012 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the April 2012 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 3. The weight of the competent and probative evidence is against finding heart disease during the period on appeal. 4. The weight of the competent and probative evidence is against finding Hepatitis B during the period on appeal. 5. The weight of the competent and probative evidence is against finding an acquired psychiatric disorder, to include PTSD, during the period on appeal. 6. The Veteran is in receipt of the maximum schedular rating for tinnitus. 7. The weight of the competent and probative evidence is against finding that diabetes requires regulation of activities. 8. The competent and probative evidence shows that the Veteran’s bilateral visual acuity is 20/40 or better with correction. 9. The weight of the competent and probative evidence is against finding penile deformity. 10. The weight of the competent and probative evidence is against finding severe incomplete paralysis of the right (major) upper extremity. 11. The weight of the competent and probative evidence is against finding severe incomplete paralysis of the left (minor) upper extremity. 12. The weight of the competent and probative evidence is against finding that the impairment caused by the Veteran’s service-connected disabilities precludes substantially gainful employment. 13. On January 17, 2017, VA received a claim of entitlement to service connection for tinnitus. 14. The competent and probative evidence is at least in equipoise as to whether it is factually ascertainable that the Veteran’s diabetic peripheral neuropathy of the right upper extremity increased in severity as of January 20, 2015. CONCLUSIONS OF LAW 1. The April 2012 decision denying the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the April 2012 decision to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for Hepatitis B have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.84, Diagnostic Code (DC) 6260. 7. The criteria for entitlement to a rating in excess of 20 percent for diabetes with retinopathy and erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.75, 4.76, 4.79, DC 6040, 4.119, DC 7913, 4.115b, DC 7522. 8. The criteria for entitlement to a rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8615. 9. The criteria for entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DCs 8514, 8615. 10. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 11. The criteria for entitlement to an effective date prior to January 17, 2017, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 12. The criteria for entitlement to an effective date of January 20, 2015, for the grant of a 30 percent rating for diabetic peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to May 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2012, April 2016, and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran, in Memphis, Tennessee, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. In November 2015, VA received a claim of entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity. An April 2016 rating decision assigned a rating of 30 percent as of August 11, 2015. Although an increased rating was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The April 2016 rating decision increased the rating for diabetic peripheral neuropathy of the left upper extremity from 10 percent to 20 percent disabling, effective August 11, 2015. A January 2017 NOD appealed the effective date of the increased rating. A January 2018 rating decision granted the 20 percent rating effective October 10, 2012, based on a finding of clear and unmistakable error. A February 2018 statement of the case (SOC) did not address entitlement to an effective date prior to October 10, 2012, for the grant of the 20 percent rating. In February 2018, VA received an NOD as to the effective date assigned for the 20 percent rating in the January 2018 rating decision. As an SOC has not been issued regarding entitlement to an effective date prior to October 10, 2012, for the grant of the 20 percent rating, the claim must be remanded for issuance of an SOC in compliance with Manlincon v. West, 12 Vet. App. 238, 240 (1999). The April 2016 rating decision reopened and denied the claim of entitlement to service connection for PTSD. However, even where the AOJ determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As the record contains a diagnosis of adjustment disorder, the Board has broadened and recharacterized the reopened claim for PTSD as a claim of service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). REFERRED A January 2017 application for compensation contained a claim of entitlement to service connection for Hepatitis C, which has not been adjudicated by the AOJ and it is referred to the AOJ for appropriate action. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for PTSD. In April 2012, the AOJ denied service connection for PTSD based on the lack of a current diagnosis. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the April 2012 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the April 2012 decision. In July 2018, the Veteran testified that a doctor told him he has PTSD. 07/10/2018, Hearing Testimony. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (current disability), by addressing whether the Veteran has a diagnosis of PTSD. Therefore, the claim of service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Entitlement to service connection for heart disease. After review of the record, the Board finds that the criteria for service connection for heart disease have not been met. The Board finds that the weight of the competent and probative evidence is against finding a current diagnosis of heart disease. Initially, the Board notes that the Veteran’s treatment records do not contain a diagnosis of heart disease of any kind. In July 2018, the Veteran testified that he has metabolic syndrome and that it is possible he has heart disease. 07/10/2018, Hearing Testimony. An October 2011 treatment note indicates a diagnosis of metabolic syndrome, which is defined by the Mayo Clinic as “a cluster of conditions—increased blood pressure, high blood sugar, excess body fat around the waist, and abnormal cholesterol or triglyceride levels—that occur together, increasing your risk of heart disease, stroke and diabetes.” 12/01/2015, CAPRI; Metabolic syndrome, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/metabolic-syndrome/symptoms-causes/syc-20351916 (last updated Mar. 6, 2018). As metabolic syndrome is a cluster of symptoms that increases the risk of developing heart disease, and not a diagnosed disorder of heart disease, the Board finds that there is no current diagnosis of heart disease. Without competent evidence of a current disability, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to service connection for Hepatitis B. After review of the record, the Board finds that the criteria for service connection for Hepatitis B have not been met. The Board finds that the weight of the competent and probative evidence is against finding a current diagnosis of Hepatitis B. An August 2011 treatment note indicates that the Veteran was tested for Hepatitis B by the health department and was advised that he does not have Hepatitis B. It was noted that hepatitis testing by VA showed reactive antibodies with non-reactive antigen, which usually indicates immunization or prior exposure to Hepatitis B but without current disease. 04/11/2012, CAPRI. The medical records are otherwise silent for a diagnosis of Hepatitis B during the period on appeal. Without competent evidence of a current disability, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD After review of the record, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. A November 2015 treatment note indicates the presence of trauma-related and depression symptoms. 12/01/2015, CAPRI. A December 2015 treatment note reflects a diagnosis of adjustment disorder not otherwise specified (NOS), but does not indicate how the Veteran’s symptoms satisfy the criteria for such a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 12/23/2015, CAPRI. The Board notes that the diagnosis of adjustment disorder does not otherwise appear in the treatment records, including subsequent to the December 2015 treatment note. In March 2016, a VA psychologist determined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD or any other acquired psychiatric disorder under the DSM-5 criteria. The examiner explained that several diagnostic tests were administered, the results of which did not support a diagnosis for any acquired psychiatric disorder. The examination also addressed the specific criteria for establishing a diagnosis of PTSD and which criteria were not met. 03/01/2016, C&P Exam. In July 2018, the Veteran testified that a doctor told him he has PTSD. 07/10/2018, Hearing Testimony. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding a diagnosed acquired psychiatric disorder during the period on appeal. In making this determination, the Board assigns more probative weight to the March 2016 VA examiner’s finding that the Veteran’s symptoms do not satisfy the criteria for a diagnosed psychiatric disorder under the DSM-5 than the December 2015 diagnosis of adjustment disorder NOD, as the VA examiner provided an adequate rationale to explain how she reached her conclusion, including the use of diagnostic testing. The Board acknowledges that although the Veteran is competent to report a contemporaneous diagnosis, but the weight of the competent and probative evidence, to include after diagnostic testing by a training professional, is against finding a diagnosis of PTSD, as no such diagnosis appears in the medical records. Without competent evidence of a current disability, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert, 1 Vet. App. at 57-58. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). 5. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available under Diagnostic Code 6260. See 38 C.F.R. § 4.87, DC 6260. The Board finds that the current 10 percent schedular rating contemplates the impact of his tinnitus, such as impaired concentration and loss of focus. Accordingly, the Veteran’s claim for an increased rating for tinnitus is denied as a matter of law. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (concluding that the United States Court of Appeals for Veterans Claims (Court) erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). 6. Entitlement to a rating in excess of 20 percent for diabetes with retinopathy and erectile dysfunction. The Veteran contends that a rating in excess of 20 percent is warranted for diabetes with retinopathy and erectile dysfunction, evaluated under Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. The Court has explained that the term “regulation of activities” means that a claimant must have a medical need to avoid not only strenuous occupational activity, but also strenuous recreational activity. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to show that occupational and recreational activities have been restricted. Id. at 364. A note following the rating criteria provides that compensable complications of diabetes should be separately evaluated unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 20 percent is not warranted for diabetes. The Board finds that the weight of the competent and probative evidence is against finding that diabetes requires regulation of activities. In July 2018, the Veteran testified that he takes a form of insulin daily and has adjusted his diet to control his diabetes, and that his doctor has advised exercising for at least 30 minutes three times per week. The Veteran could not recall being told by his doctor to restrict his activities. 07/10/2018, Hearing Testimony. There is no indication that the Veteran has been advised by a medical professional to avoid strenuous occupational and/or recreational activities, or that occupational and recreational activities have been restricted due to diabetes. In fact, the treatment records reflect ongoing advice to continue exercising. See 05/23/2017 CAPRI; see also 12/22/2015 C&P Exam (noting that the Veteran stated that his primary care provider encouraged him to walk as part of his medical regimen for his diabetes). In light of the above, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s diabetes requires regulation of activities; thus, a rating in excess of 20 percent is not warranted under Diagnostic Code 7913. See 38 C.F.R. § 4.119, DC 7913. As the Board has not assigned a 100 percent rating under Diagnostic Code 7913, it must evaluate whether separate ratings are warranted for the diabetic complications of retinopathy and erectile dysfunction. Diabetic retinopathy is evaluated under Diagnostic Code 6040, which directs the evaluator to rate the disability based on visual impairment or incapacitating episodes, whichever results in a higher rating. See 38 C.F.R. § 4.79, DC 6040, General Rating Formula for Diseases of the Eye. Eye disabilities with visual impairment are rated based on impairment in visual acuity with correction. See 38 C.F.R. §§ 4.75, 4.76. Impairment of central visual acuity warrants a noncompensable rating when the vision in both eyes is 20/40 (6/12) or better. A ten percent rating is provided for vision in one eye of 20/50 (6/15) and vision in the other of 20/40 (6/12) or 20/50 (6/15) or vision in one eye of 20/70 (6/21) or 20/100 (6/30) with vision in the other of 20/40 (6/12). 38 C.F.R. § 4.79, General Rating Formula for Diseases of the Eye. Initially, the Board notes that a May 2017 treatment note indicates that diabetic retinopathy is not present. 07/24/2017, CAPRI. Eye examinations in October 2015 and May 2017 both demonstrate corrected vision of 20/40 or better in both eyes. 10/03/2015, C&P Exam; 07/24/2017, CAPRI. Additionally, there is no evidence of incapacitating episodes due to diabetic retinopathy. In this regard, the October 2015 VA examiner noted no evidence of incapacitating episodes and the Veteran denied experiencing such. 10/03/2015, C&P Exam. Accordingly, the Board finds that a separate compensable rating is not warranted for diabetic retinopathy, as the competent and probative evidence preponderates in favor of finding corrected visual acuity of 20/40 or better in both eyes. See 38 C.F.R. §§ 4.75, 4.76, 4.79, DC 6040. Erectile dysfunction is evaluated under Diagnostic Code 7522, which provides for the sole and maximum rating of 20 percent for penile deformity and loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. Footnote to Diagnostic Code 7522 provides for review for entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350. The Board notes that a March 2013 rating decision granted SMC for loss of use of a creative organ, effective August 16, 2012. The Board finds that a separate compensable rating is not warranted for erectile dysfunction, as the weight of the competent and probative evidence is against finding penile deformity. See 38 C.F.R. § 4.115b, DC 7522. In this regard, there is no evidence of penile deformity in the medical records, and a December 2015 VA examination reflects that the Veteran denied the presence of such deformity. 12/22/2015, C&P Exam. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher and/or additional evaluation for diabetes based on the evidence. See 38 C.F.R. § 4.119, DC 7913. Indeed, when a condition is listed in the schedule, rating by analogy is not appropriate. Copeland, 27 Vet. App. at 336-37. The Board notes that the benefit of the doubt has been applied, where applicable. 7. Entitlement to a rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity. 8. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity. The Veteran contends that he is entitled to a rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity, evaluated under Diagnostic Code 8615 (paralysis of median nerve), and a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity, evaluated under Diagnostic Code 8514 (paralysis of the radial nerve). Diseases affecting the nerves are rated based on degree of paralysis, neuritis, or neuralgia under 38 C.F.R. §§ 4.123, 4.124, and 4.124a. Moderate incomplete paralysis of the radial or median nerve warrants a 20 percent rating for the minor hand and a 30 percent rating for the major hand. Severe incomplete paralysis warrants a 40 percent rating for the minor hand and a 50 percent rating for the major hand. Complete paralysis warrants a 70 percent rating for the major hand and a 60 percent rating for the minor hand. 38 C.F.R. § 4.124a, DCs 8514, 8515. The terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. The evidence demonstrates that the Veteran’s right arm is his dominant upper extremity. 12/22/2015, C&P Exam. Complete paralysis of the radial nerve is evidenced by drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, DC 8514. Complete paralysis of the median nerve is evidenced by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscle of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. VA guidance indicates that moderate incomplete paralysis will likely be described by the veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In Miller v. Shulkin, the Court held that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). 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 such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that ratings in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity and in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity are not warranted. In a January 2015 neurology note, the Veteran reported that numbness and tingling of the arms was progressively worsening. Physical examination revealed sensory loss to pin prick and vibration. He had improved sensation mid forearm and his reflexes were 2+ (expect ankles). A May 2015 treatment note reflects the Veteran’s report of neuropathy pain as 6/10. In August 2015, the Veteran reported that burning and tingling of the hands was getting better after starting gabapentin, but that he was experiencing muscle spasms of the bilateral hands. An examination in August 2015 revealed decreased sensation and hypoactive reflexes. 09/03/2015, CAPRI. A December 2015 VA examination indicates no constant pain, severe intermittent pain (usually dull), severe paresthesias and/or dysesthesias, and moderate numbness of the right arm, and no constant pain, moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and moderate numbness of the left arm. Testing revealed reduced strength (4/5) in left wrist extension and bilateral grip, with otherwise normal strength testing and no muscle atrophy. The examiner found hypoactive (1+) deep tendon reflexes of the bilateral biceps, triceps, and brachioradialis; decreased light touch sensation in the bilateral hands/fingers; normal position sense bilaterally; and normal vibration sense bilaterally. Based on these findings, the VA examiner concluded that the Veteran has moderate incomplete paralysis of the median nerve bilaterally (and no paralysis of any other nerves affecting the bilateral upper extremities). 12/22/2015, C&P Exam. The Board finds the December 2015 VA examination to be competent, credible, and highly probative, as it is supported by an in-person examination, review of the relevant records, medical expertise, proper consideration of lay evidence, and scientific testing. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding severe incomplete paralysis of the bilateral upper extremities. The Board finds that moderate to severe intermittent pain, moderate to severe paresthesias and/or dysesthesias, moderate numbness, slightly decreased strength, hypoactive deep tendon reflexes, and decreased sensation to light touch are contemplated by the ratings for moderate incomplete paralysis. In finding that a higher rating is not warranted, the Board notes that the weight of the competent and probative evidence is against finding muscle atrophy, significant weakness, significant loss of strength, or absence of deep tendon reflexes or sensation to touch. The Board notes that a higher rating is not available under Diagnostic Code 8715 for neuralgia of the median nerve, as the maximum rating available is equal to moderate incomplete paralysis. See 38 C.F.R. § 4.124. Nor can a higher rating be assigned under Diagnostic Code 8615, as the record does not demonstrate neuritis of the median nerve, as the weight of the competent and probative evidence is against finding loss of reflexes, muscle atrophy, and constant pain. See 38 C.F.R. § 4.123; see also 12/22/2015, C&P Exam. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher and/or additional evaluations for peripheral neuropathy of the bilateral upper extremities based on the evidence. See 38 C.F.R. § 4.124a. The Board notes that the benefit of the doubt has been applied, where applicable. TDIU 9. Entitlement to TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for peripheral neuropathy of the right arm (30 percent); peripheral neuropathy of the left arm (20 percent); diabetes (20 percent); peripheral neuropathy of the right leg (10 percent); peripheral neuropathy of the left leg (10 percent); and tinnitus (10 percent). The Veteran’s service-connected disabilities combine for a 70 percent rating; thus, the percentage threshold is met. See 38 C.F.R. § 4.25. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (stating that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (finding that VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57-58. Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. The evidence demonstrates that the Veteran worked as a professional gambler for 40 years, until he retired due to changes in the industry. The Veteran did not indicate that he is unable to work due to his service-connected disabilities. See 07/10/2018, Hearing Testimony; 02/29/2012, VA Examination. In January 2017, VA sent a notification to the Veteran requesting that he complete an attached VA Form 21-8940 to assist in substantiating the claim for TDIU; however, the Veteran did not respond to this request. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities preclude all types of employment, including sedentary labor. In this regard, the term sedentary labor is not defined in VA regulations. Therefore, while not binding, the Board has looked at regulations used by the Social Security Administration for assistance. 20 C.F.R. §§ 404.1567, 404.1569. That agency defines sedentary work as work which primarily involves a job sitting down, lifting no more than 10 pounds at a time, and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Jobs are sedentary if walking and standing are required occasionally and the other sedentary criteria are met. The Board finds that this common-sense definition warrants application in this case. The Board recognizes that the Veteran’s service-connected disabilities may result in some occupational impairment and/or inconvenience in the workplace; however, he is being compensated for those limitations, as the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently in receipt of a s70 percent combined evaluation. The Board also finds that the weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities result in cognitive impairment. Thus, while the Veteran’s service-connected disabilities may preclude certain types of employment due to physical limitations, the Board finds that the lack of cognitive deficits weighs against finding that he would be unable to find and maintain all types of gainful employment, to include sedentary labor. With regard to his unique circumstances, to include his education, work experience, and impairment from service-connected disabilities (to the extent that information is available because the Veteran did not submit a VA Form 21-8940), the Board finds that the competent and credible evidence weighs against finding the Veteran unemployable by reason of his service-connected disabilities. Effective Date Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims for an increase in a service connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Prior to March 24, 2015, a “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 57-58. 10. Entitlement to an effective date prior to January 17, 2017, for the grant of service connection for tinnitus. After reviewing the relevant evidence and applying the above laws and regulations, the Board finds that an effective date prior to January 17, 2017, for the grant of service connection for tinnitus is not warranted. On January 17, 2017, VA received an application for compensation, which included a claim of entitlement to service connection for tinnitus. 01/17/2017, VA 21-526. A September 2017 rating decision granted service connection for tinnitus and assigned a 10 percent rating effective January 17, 2017, the date VA received the claim. The Board has reviewed the record but has not found any other claim for tinnitus submitted on a standardized VA form, nor any formal or informal written communication that could be construed as a claim for tinnitus prior to March 24, 2015. Thus, the Board finds that the currently assigned effective date of January 17, 2017, is proper based on the application of the above facts to the applicable laws and regulations, as noted above. 11. Entitlement to an effective date prior to August 11, 2015, for the grant of a 30 percent rating for diabetic peripheral neuropathy of the right upper extremity On November 4, 2015, VA received a claim for a rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity. An April 2016 rating decision assigned a 30 percent rating effective August 11, 2015, finding it to be a factually ascertainable date demonstrating an increased in disability within one year prior to receipt of the increased rating claim. As previously noted, a January 20, 2015, treatment note reflects the Veteran’s report that numbness and tingling of the arms was progressively worsening. On August 11, 2015, the Veteran reported that burning and tingling of the hands was getting better after starting gabapentin and that he was experiencing muscle spasms of the bilateral hands, and an examination revealed decreased sensation and hypoactive reflexes. 09/03/2015, CAPRI. The Board finds that the symptoms reported on January 20, 2015, are similar in severity as those described on August 11, 2015. Resolving doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether an increase in severity of diabetic peripheral neuropathy of the right upper extremity was shown as of January 20, 2015, which is within one year prior to receipt of the increased rating claim on November 4, 2015. Accordingly, a 30 percent rating for diabetic peripheral neuropathy of the right upper extremity is granted effective January 20, 2015. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA audiological examination in May 2017. The examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not caused by or a result of an in-service event, stating that hearing was normal at entry and discharge, and that there were no hearing threshold shifts during service. Initially, the Board notes that the May 2017 VA examiner found normal hearing upon entry and discharge, which is contrary to the June 1967 audiological results demonstrating hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the VA examiner should explain what impact, if any, the fact that the Veteran’s hearing seems to have improved during service has on the weight given to the results of the audiometric examination conducted in March 1970. For these reasons, the Board finds the May 2017 VA examination to be inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Board notes that prior to January 1, 1967, American Standards Association (ASA) units were used in audiological testing. On September 9, 1975, the regulatory standard for evaluating hearing loss was changed to require use of International Standards Organization-American National Standards Institute (ISO-ANSI) units. Where necessary to facilitate data comparison for VA purposes, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI, or vice versa. Because it unclear whether the June 1976 and March 1970 examinations recorded thresholds in ASA or ISO-ANSI units, the examiner should assume that the measurements were recorded in the units most favorable to the Veteran’s appeal. Accordingly, the AOJ should obtain an addendum opinion as to the etiology of the Veteran’s bilateral hearing loss, and the clinician should consider the different standards used in audiometric testing during the period of the Veteran’s active service. The Board notes that the Veteran is service-connected for tinnitus, and in-service acoustic trauma has been conceded. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. The Veteran contends that he began experiencing problems with sleep during his period of service, and that he has continued to experience them since, thus indicating a possible nexus between a current disorder and service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that “[t]his is a low threshold” for meeting the requirement to trigger VA’s duty to assist to provide an examination). Accordingly, the AOJ should schedule the Veteran for an examination to determine the nature and etiology of any diagnosed sleep disorder.   3. Entitlement to service connection for CTS of the right upper extremity is remanded. 4. Entitlement to service connection for CTS of the left upper extremity is remanded. In December 2015 and March 2016, VA examiners opined that bilateral CTS is not due service-connected diabetes. The examiners did not address whether CTS had its onset in or is otherwise related to service, or whether bilateral CTS is aggravated by diabetes or diabetic peripheral neuropathy of the bilateral upper extremities. Accordingly, the AOJ should obtain an addendum opinion to determine the etiology of bilateral CTS. 5. Entitlement to an effective date prior to October 10, 2012, for the grant of a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity is remanded. As previously discussed, in January 2017, the Veteran appealed the effective date of the grant of a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity. The AOJ has not issued an SOC regarding the earlier effective date claim. As such, the Board has no discretion, and the issue must be remanded for such a purpose. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9(c). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 2. After completing directive #1, obtain an addendum opinion by a VA audiologist to determine the nature and etiology of bilateral hearing loss. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The audiologist is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that bilateral hearing loss manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that bilateral hearing loss (i) manifested to a compensable degree within one year of May 28, 1970, or (ii) was noted during service with continuity of the same symptomatology since service. The clinician should consider and address the following: (i) that the Veteran’s hearing seems to have improved during service; and (ii) the different standards used in audiometric testing during the period of the Veteran’s active service. 3. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed sleep disorder. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all sleep disorders that are currently present (or present any time from January 17, 2017, to the present). Specifically, state whether sleep apnea is present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder manifested during or is otherwise related to the Veteran’s period of active service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder was caused by a service-connected disability, to include due to associated pain. (d.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability, to include due to associated pain. 4. After completing directive #1, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of bilateral CTS. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that bilateral CTS manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that bilateral CTS was caused by a service-connected disability, to include diabetes and diabetic peripheral neuropathy. (c.) Whether it is at least as likely as not (50 percent or greater probability) that bilateral CTS has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability, to include diabetes and diabetic peripheral neuropathy. (Continued on the next page)   5. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an effective date prior to October 10, 2012, for the grant of a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel