Citation Nr: 18150978 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 13-34 696 DATE: November 19, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus is denied. A rating in excess of 10 percent for weakness of the right upper extremity is denied. A rating in excess of 10 percent for weakness of the right lower extremity is denied. An effective date of September 29, 2010 for a separate 10 percent rating, but no earlier or no higher, for bilateral non-proliferative retinopathy and bilateral cataracts is granted. An effective date of August 5, 2011 for a total rating based on individual unemployability due to service connected disabilities (TDIU) is granted. Special monthly compensation based on the need for regular aid and attendance is granted.   REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an effective date prior to August 5, 2011 for TDIU on an extraschedular basis is remanded FINDINGS OF FACT 1. The evidence shows that the Veteran’s diabetes mellitus required insulin and a restricted diet, but the preponderance of the evidence is against a finding that regulation of activity was required for any portion of the appeal period. 2. The evidence demonstrates that the Veteran has had no more than mild paralysis of the median nerve of the minor extremity for the entire appeal period. 3. The evidence demonstrates that the Veteran has had no more than mild paralysis of the sciatic nerve of the right lower extremity for the entire appeal period. 4. The Veteran’s claim for an increased rating for diabetes mellitus was received on August 5, 2011. 5. It is factually ascertainable that an increased rating based on the Veteran’s diabetes mellitus is warranted during the year prior to August 5, 2011, in that a VA eye consultation dated September 29, 2010 demonstrates entitlement to a compensable rating based on corrected far vision for the right eye of 20/50 and corrected far vision for the left eye of 20/40, evidence of 20/70 vision or worse in either eye was not shown. 6. The schedular criteria for TDIU were met as of August 5, 2011, and it was as likely as not that the Veteran’s service connected disabilities in effect as of that date combined to render him unable to obtain or maintain gainful employment. 7. Symptoms associated with the Veteran’s service-connected diabetes mellitus and disabilities secondary to diabetes mellitus rendered him unable to feed or dress himself, bear weight or ambulate, take his medications, protect himself from his environment, or attend to the wants of nature, and therefore in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 38 C.F.R. § 4.119, Code 7913 (2017). 2. The criteria for a rating in excess of 10 percent for weakness of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.10, 4.21, 38 C.F.R. § 4.124a, Code 8515 (2017). 3. The criteria for a rating in excess of 10 percent for weakness of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.10, 4.21, 38 C.F.R. § 4.124a, Code 8520 (2017). 4. The criteria for an effective date of September 29, 2010, for a separate 10 percent rating for bilateral non-proliferative retinopathy and bilateral cataracts have been met, the criteria for an effective date prior to September 29, 2010 or a higher rating have not been met. 38 C.F.R. §§ 3.400(o)(2), 4.79, Codes 6026, 6027, 6066 (2017). 5. The criteria for an effective date of August 5, 2011, for TDIU have been met; the criteria for an effective date prior to August 5, 2011 on a schedular basis have not been met. 38 C.F.R. §§ 3.341, 3.400(o)(2), 4.16, 4.19 (2017). 6. The criteria for special monthly compensation based on the need for regular aid and attendance have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1958 to December 1979. Unfortunately, in October 2015, he died during this appeal. The appellant is now the Veteran’s surviving spouse. She is continuing this appeal as a substitute for the claimant under the provisions of 38 U.S.C. § 5121A (2012). In September 2018, the appellant withdrew her request for a hearing before a Veterans Law Judge. Increased Rating The appellant contends that the evaluations for the Veteran’s service connected diabetes mellitus, weakness of the right upper extremity, and weakness of the right lower extremity were inadequate to reflect the impairment they caused the Veteran. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. 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 concern. Although a rating specialist is directed to review the recorded history of a disability 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to a rating in excess of 20 percent for diabetes mellitus. Entitlement to service connection for diabetes was granted in a March 2004 rating decision which assigned the 20 percent rating in effect. The Veteran’s current claim for an increased rating for diabetes mellitus was received on August 5, 2011, which will be further addressed in the discussion for an earlier effective date for the Veteran’s bilateral non-proliferative retinopathy and bilateral cataracts. The Veteran's diabetes is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Code 7913. A 20 percent rating is assigned when diabetes requires the use of insulin or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 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. Id. "Regulation of activities" has been defined as the situation where the claimant has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013); Camacho v. Nicholson, 21 Vet. App. 360 (2007). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Code 7913, Note (1). A November 2008 VA diabetes examination states that the Veteran was using three oral medications and had started insulin injections in 2005. He had episodic hypoglycemia, which was treated with glucose tablets. The Veteran had not been hospitalized during the past year for ketoacidosis or hypoglycemic reactions, and had last visited his diabetic care provider due to ketoacidosis or hypoglycemic reactions two weeks prior to the examination. He did not have any activity restrictions due to diabetes, and was retired. His diet was to be low in concentrated sweets. The impression was that the Veteran’s diabetes currently had poor control. A June 2009 letter from the Veteran’s private doctor states that the Veteran was restricting his diet as best he could and was having to regulate his activities because of peripheral neuropathy. He required two doses of insulin daily. In a December 2009 letter from this same doctor, he says that the Veteran’s diabetes has been very difficult to control. Insulin was necessary because oral medication did not control him. He was following a restricted diet and his activities had to be curtailed. The Veteran also had neuropathy. VA treatment records show the Veteran had an endocrinology consultation in December 2009. He had recently experienced weight loss but was gaining it back. The assessment noted that the Veteran displayed a good understanding of insulin therapy, and he was cognizant that traveling and eating out were the cause of his hyperglycemia and that skipping evening snacks contributed to morning lows. The examiner believed that consistency in meal type and size was needed, but not an adjustment in his insulin dosage. A follow up consultation was offered but declined until needed. August 2010 VA treatment records state that the Veteran’s diabetes was under good control. November 2010 records continued to describe his diabetes as being under good control, but a January 2011 addendum says that the diabetes needed better control and the Veteran should do diet and exercise. January 2011 private medical records agree that the diabetes was uncontrolled. June 2011 VA treatment records state that the Veteran did not use a certain form of insulin due to repeated hypoglycemia while on it. There had been one low blood sugar the past month. A July 2011 VA endocrinology consultation reports that the Veteran was experiencing blood sugar volatility. He did not exercise and the examiner questioned whether his diet was good. The Veteran was given detailed instruction as to when and what to eat. The Veteran was provided another VA diabetes examination in May 2013. The Veteran required more than one injection of insulin each day. He did not require regulation of activities, and had less than two visits per month to his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. The Veteran had not been hospitalized for ketoacidosis or hypoglycemia during the past year. He had not experienced progressive unintentional weight loss or progressive loss of strength due to diabetes. Other conditions due to his diabetes included diabetic peripheral neuropathy, diabetic retinopathy, erectile dysfunction, stroke, and eye conditions in addition to retinopathy. VA treatment records dated October 2013 note that the Veteran was on insulin and that the appellant reported a hypoglycemic episode earlier that day. The final VA diabetes examination was in September 2015. The Veteran continued to require more than one injection of insulin per day. However, he did not require regulation of activities, he visited his diabetic care provider less than two times per month for ketoacidosis and hypoglycemia, and he had not been hospitalized for either of these conditions during the past year. The Veteran’s diabetes had not resulted in progressive unintentional weight loss or loss of strength. The Board finds that the evidence does not support entitlement to a rating higher than 20 percent for the Veteran’s diabetes. The three requirements for a 40 percent rating are the need for insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Code 7913. The evidence establishes that the Veteran required insulin and had a restricted diet throughout the appeal period. The remaining question is whether his diabetes mellitus required the regulation of his activities. On the one hand, VA examinations conducted in November 2008, May 2013 and September 2015 all state that the Veteran did not require regulation of activities due to his diabetes mellitus. In fact, December 2009 VA treatment records note the Veteran had been traveling, and January 2011 VA treatment records show that he was encouraged to get more exercise. In contrast, the June 2009 letter from the private doctor says that the Veteran had to regulate his activities due to his peripheral neuropathy, and his December 2009 letter said his activities had to be curtailed. The Board concludes that the preponderance of the evidence is against a finding that the Veteran required regulation of his activities due to his diabetes mellitus for any portion of the appeal period. The only evidence that the Veteran required regulation of activities is the two letters from the private examiner. However, the June 2009 letter makes it clear that the decrease in activity was due to the Veteran’s peripheral neuropathy and not due to his diabetes mellitus. Neither letter includes the required evidence that the Veteran was prescribed or advised to avoid strenuous occupational and recreational activities. In contrast, the January 2011 VA treatment record believed that he should increase his strenuous activities and get more exercise. The remaining VA examiners were unanimous in stating that regulation of activities was not required. The Board finds this evidence to be the most persuasive as it was detailed and consistent. As the evidence must show all three requirements before a 40 percent rating can be assigned, an increased rating is not warranted. 38 C.F.R. § 4.119, Code 7913. Entitlement to a rating in excess of 10 percent for weakness of the right upper extremity Entitlement to service connection for right upper extremity weakness as a residual of a cerebral vascular accident was granted in a September 2005 rating decision. A 10 percent rating was assigned from April 2005. The Veteran’s right upper extremity weakness is evaluated under the rating code for paralysis of the median nerve. The current claim was received in January 2010. Disability of the median nerve is rated under 38 C.F.R. § 4.124a, Code 8515. Under this code, a 10 percent rating is warranted for mild incomplete paralysis for the minor or major side. For moderate incomplete paralysis, a 20 percent rating is warranted for the minor extremity and a 30 percent rating is warranted for the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the minor extremity and 50 percent for the major extremity. Finally, a 60 percent rating is warranted for complete paralysis of the median nerve of the minor extremity and a 70 percent rating for the major extremity, manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the place of the hand (ape hand); incomplete and defective pronation, 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; weakened flexion of the wrist; and pain with trophic changes. 38 C.F.R. § 4.124a, Code 8515. Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. 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 a 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. 38 C.F.R. § 4.124a. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20 percent 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). A May 2010 VA treatment note shows that a neuro check found that the Veteran’s hand grasp was equal bilaterally. A June 2010 VA examination for the brain and spinal cord notes that the Veteran is left handed. He had a history of moderate degenerative small vessel disease of the brain that was discovered in 2005. The Veteran had episodic tingling sensations and tremors on his right side. Motor strength was 5/5, his muscle tone was normal, and there was no atrophy. Deep tendon reflexes were 2+ at all relevant locations. The Veteran’s sensory function was decreased to vibration, but normal in other respects. A private record from January 2011 includes neuropathy on the Veteran’s problem list. This record says that given the Veteran’s worsening of symptoms, a new nerve conduction study was recommended. An April 2013 private physical examination states that there was equal muscle strength and no focal deficits upon movement of the extremities. The Veteran did have tremors diffusely. The Veteran was provided a VA examination for diabetic neuropathy in May 2013. He was reportedly left-handed. There was no pain in the upper extremities. Strength was 4/5 in all movements of the upper extremities bilaterally, and reflexes were 1+ at all locations bilaterally. Sensation was normal for touch, position sense, and vibration. There was no muscle atrophy or trophic changes. Neuropathy of the upper extremities was not noted. A September 2013 private examination makes the general observation that the Veteran’s muscle tone was atrophied. However, a February 2014 letter from this same physician reports that on neurological examination the Veteran’s strength was grossly normal. There was no evidence of atrophy. The most recent VA examination for diabetic peripheral neuropathy was in September 2015. He was left-handed. Constant mild pain of both upper extremities was reported, as were mild paresthesias and numbness. The Veteran retained 4/5 strength bilaterally at all locations. His reflexes were decreased to 1+ bilaterally. The sensation in his hands was decreased to light touch, vibration, and cold sensation. There was no muscle atrophy or trophic changes. The examiner opined that the Veteran had mild incomplete paralysis of the median nerve. The Board finds that the weight of the competent evidence does not support entitlement to a rating in excess of 10 percent for the Veteran’s weakness of the right upper extremity. The most recent examinations show strength that is reduced to 4/5, but this reduction was bilateral and not considered greater than mild. The VA examination reports were negative for atrophy. His private doctor is inconsistent as to whether there was atrophy, but the Board observes that the September 2013 reference to an atrophied muscle tone referred to the Veteran’s body tone as a whole and not his right upper extremity. The Veteran’s remaining symptoms are sensory, and not shown to be more than mild. See Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (holding 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”). In fact, the September 2015 VA examiner opined that the Veteran had mild incomplete paralysis of the right median nerve, and the Board finds that there is insufficient evidence to contradict this opinion. Mild incomplete paralysis merits continuation of the 10 percent rating that is currently assigned. 38 C.F.R. § 4.124a, Code 8515. Entitlement to a rating in excess of 10 percent for weakness of the right lower extremity. The April 2005 rating decision also granted service connection for right lower extremity weakness as a residual of a cerebral vascular accident. This disability received a 10 percent rating effective from April 2005. The Veteran’s right lower extremity weakness is evaluated under the rating code for paralysis of the sciatic nerve. The current claim was received in January 2010. Complete paralysis of the sciatic nerve exists when the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabling. Severe incomplete paralysis with marked muscular atrophy is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis is evaluated as 20 percent disabling, and mild paralysis is 10 percent disabling. 38 C.F.R. § 4.124a, Code 8520. A May 2010 VA treatment note shows that a neuro check found the Veteran’s foot push was weak on the right. A June 2010 VA examination for the brain and spinal cord notes the Veteran reported numbness in both feet and gait difficulty. He had episodic tingling sensations and tremors on his right side. He also had difficulty with his gait and his balance was not normal, but he was also noted to have recently undergone right knee surgery. However, motor strength was 5/5. His muscle tone was normal and there was no atrophy. Deep tendon reflexes were 2+ at all relevant locations. All sensory function was normal. A private record from January 2011 includes neuropathy on the Veteran’s problem list and refers to a worsening of symptoms. An April 2013 private physical examination states that there was equal muscle strength and no focal deficits upon movement of the extremities. Diffuse tremors and unsteadiness of gait was noted. The May 2013 VA examination for diabetic neuropathy shows that the Veteran reported intermittent mild pain, paresthesias, and numbness of the right lower extremity. Strength was 4/5 in all movements of the lower extremities bilaterally, and reflexes were 1+ at all locations bilaterally. Sensation was decreased for touch and vibration. There was no muscle atrophy or trophic changes. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve. A September 2013 VA treatment note shows the Veteran presented with lower extremity weakness, greater on the right than the left. The September 2013 private examination observed that the Veteran’s muscle tone was atrophied. He walked with a walker. In contrast, the February 2014 letter from this same physician notes the Veteran’s strength was grossly normal. There was no evidence of atrophy and his gait was normal. The September 2015 VA examination for diabetic peripheral neuropathy states constant mild pain of both upper extremities was reported, as were mild paresthesias and numbness. The Veteran had 4/5 strength, and his reflexes were decreased to 1+. The sensation in his feet was decreased to light touch, position, vibration, and cold sensation. There was no muscle atrophy or trophic changes. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve. The Board finds that the evidence shows that the Veteran’s incomplete paralysis of the sciatic nerve has been no more than mild for the entire appeal period, which means that entitlement to a rating higher than 10 percent is not shown. As with the right upper extremity, the most recent examinations show strength that is reduced to 4/5, but this reduction was bilateral and not considered greater than mild. The VA examinations were negative for atrophy. His private doctor is inconsistent regarding whether there was atrophy, but the Board observes that the September 2013 reference to an atrophied muscle tone referred to the Veteran’s entire body and not his right lower extremity. The same examiner found there was no atrophy only a few months later. The Veteran’s remaining symptoms are sensory, and never shown to be greater than mild over the period on appeal. See Miller, 28 Vet. App. at 380. The May 2013 and September 2015 VA examiners both provided opinions that the Veteran had mild incomplete paralysis of his right sciatic nerve after reviewing the Veteran’s relevant medical history and performing an in-person examination of him. The Board can see no bases to disagree with these opinions, and entitlement to a rating of 20 percent or more is not supported. 38 C.F.R. § 4.124a, Code 8520. Effective Date The appellant contends that the effective dates assigned to the Veteran’s TDIU and the separate rating for bilateral non-proliferative retinopathy and bilateral cataracts are incorrect. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. For increases, the effective date will be the receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Therefore, the Board must review the record to ascertain whether it is factually ascertainable that the Veteran became eligible for an increased rating within one year prior to the receipt of his claims. Entitlement to an effective date prior to August 5, 2011 for a separate rating for bilateral non-proliferative retinopathy and bilateral cataracts. As noted in the evaluation of the Veteran’s service-connected diabetes mellitus, the rating criteria for this disability state that complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Code 7913, Note (1). The evidence shows that the March 2004 rating decision that first granted service connection for diabetes mellitus included diabetic retinopathy as part of this grant. The retinopathy was not assigned a separate evaluation because, as explained in this decision, the criteria for a 10 percent rating for retinopathy were not met. Unless the criteria for at least a 10 percent rating were met, a separate evaluation cannot be assigned. See 38 C.F.R. § 4.119, Code 7913, Note (1). A June 2013 rating decision first determined that the criteria for a 10 percent rating for bilateral retinopathy and a right eye cataract had been met. A 10 percent rating was assigned from August 5, 2011. This date was said to be the date of claim for an increased rating for diabetes had been received. Then, a June 2014 rating decision determined that the June 2013 rating decision had committed clear and unmistakable error by not including the Veteran’s left eye cataract as part of his service connected disability. When this disability was included, it was determined that the Veteran now met the criteria for a 30 percent rating. The effective date of this rating continued to be the August 5, 2011 date of receipt of the claim for an increased rating for diabetes mellitus. The record shows that the Veteran’s October 22, 2008 claim for an increased rating for his diabetes mellitus was denied in a May 2009 rating decision. He submitted a notice of disagreement with this decision in July 2009 and, in August 2010, he was provided with a statement of the case. However, the Veteran did not complete the appeal by submitting a substantive appeal. Furthermore, no unadjudicated new and material evidence was received within the remainder of the period provided to appeal. Therefore, the May 2009 rating decision that denied entitlement to an increased rating for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b). A review of the record confirms that the next communication from that Veteran that can be interpreted as a claim for an increased rating for diabetes mellitus is the VA Form 21-526b, Veteran’s Supplemental Claim for Compensation, that was received on August 5, 2011. Therefore, an effective date prior to August 5, 2011 can only be assigned if it is factually ascertainable that the Veteran became eligible for an increased rating within one year prior to the receipt of this claim. 38 C.F.R. § 3.400(o)(2). The Board will review the record to determine if it was factually ascertainable that the Veteran met the criteria for a compensable rating for bilateral non-proliferative retinopathy and bilateral cataracts within a year prior to August 5, 2011. The Veteran’s bilateral non-proliferative retinopathy and bilateral cataracts are evaluated under the rating criteria for cataracts. These state that cataracts are to be evaluated under the rating criteria for visual impairment. The Board observes that the rating criteria for optic neuropathy also state that this disability is to be evaluated under the rating criteria for visual impairment. 38 C.F.R. § 4.79, Codes 6026, 6027. The evidence within the year prior to August 5, 2011 includes VA records with a September 29, 2010 eye consultation. This examination shows that the Veteran’s corrected far vision for the right eye was 20/50 and his correct far vision for the left eye was 20/40. This meets the criteria for a 10 percent rating. See 38 C.F.R. § 4.79, Code 6066. A rating higher than 10 percent requires corrected vision of 20/70 in at least one eye, and this is not shown on this examination. Furthermore, there is no evidence of any other eye examination within the period between September 29, 2010 and August 4, 2011 that meets the criteria for a rating higher than 10 percent. Therefore, although there is no basis for a 30 percent rating prior to August 5, 2011, the evidence supports entitlement to a 10 percent rating for the Veteran’s bilateral non-proliferative retinopathy and bilateral cataracts from September 29, 2010. 38 C.F.R. §§ 3.400(o)(2), 4.79, Codes 6026, 6027, 6066. Entitlement to an effective date prior to August 29, 2011 for TDIU. Entitlement to TDIU was granted in the July 2014 rating decision. The effective date was August 29, 2011, which the decision states is the date on which the Veteran met the schedular criteria. This rating decision also granted service connection for a mood disorder, evaluated as 50 percent disabling, and a neurogenic bladder, evaluated as 10 percent disabling, both effective August 29, 2011. As discussed in the context of the effective date for the separate rating for the Veteran’s bilateral non-proliferative retinopathy and bilateral cataracts, his claim for an increased rating for diabetes mellitus was received on August 5, 2011. While a claim for TDIU was not received until June 25, 2013, the claim for an increased rating for diabetes mellitus can also be accepted as a claim for an increased rating if raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As in the claim for the effective date of the separate rating for bilateral non-proliferative retinopathy and bilateral cataracts, which was also based on the claim for an increased rating for diabetes mellitus, the effective date of TDIU, which is an increase in disability compensation, is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). It follows that the Board must determine whether it was factually ascertainable that the Veteran met the criteria for TDIU during the year prior to August 5, 2011. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. On August 5, 2011, the Veteran was service connected for several disabilities that were the result of the common etiology of diabetes mellitus. These were esophageal stricture, evaluated 30 percent disabling; bilateral non-proliferative retinopathy and bilateral cataracts; evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; right upper extremity weakness as a residual of small vessel disease of the brain, evaluated as 10 percent disabling; right lower extremity weakness as a residual of small vessel disease of the brain, evaluated as 10 percent disabling; right lower extremity peripheral neuropathy, evaluated as 10 percent disabling; left lower extremity peripheral neuropathy, evaluated as 10 percent disabling; and erectile dysfunction, evaluated as noncompensable. He was also service connected for disabilities that were not related to his diabetes mellitus, including tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids, psoriasis, and allergic rhinitis, each evaluated as noncompensable. The Board observes that the Veteran’s diabetes and diabetes related disabilities combined to an 80 percent evaluation as of August 5, 2011. When the non-diabetes related disabilities are included, the combined rating remained 80 percent. However, as the Veteran’s diabetes and diabetes related disabilities combined to 40 percent or more, and as the combined rating was 70 percent or more, the schedular criteria for TDIU were met as of August 5, 2011. Once the schedular criteria are met, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is “whether the [V]eteran’s service connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. At this point, the Board notes that service connection for the Veteran’s mood disorder and his neurogenic bladder was not effective until August 29, 2011. Therefore, the impairment to the Veteran’s employability due to these disabilities is not for consideration in the current analysis. A review of the medical evidence in the year prior to receipt of the claim shows that the Veteran’s diabetes mellitus was often considered to be poorly controlled. A VA treatment record from March 2011 shows the appellant was having to administer the Veteran’s insulin to him, as he was having difficulty with accuracy due to worsening vision and shaky hands. A July 2011 VA neurology note says that the Veteran still reported episodes of shaking. He continued to walk with a walker. Based on the findings of this examination, the Board finds that it was as likely as not that the Veteran’s service-connected disabilities combined to render the Veteran unable to obtain or maintain gainful employment as of August 5, 2011. His diabetes was poorly controlled, he had difficulty with tremors and his vision, and he often needed a walker for ambulation. Therefore, an effective date of August 5, 2011 is warranted for TDIU. Entitlement to TDIU prior to August 5, 2011 has also been considered, but this is not supported by the evidence. Prior to August 5, 2011, even with consideration of the grant of 10 percent for the bilateral non-proliferative retinopathy and bilateral cataracts effective from September 29, 2010 herein, the Veteran’s service connected disabilities were esophageal stricture, evaluated 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; bilateral non-proliferative retinopathy and bilateral cataracts, evaluated as 10 percent disabling; right upper extremity weakness as a residual of small vessel disease of the brain, evaluated as 10 percent disabling; right lower extremity weakness as a residual of small vessel disease of the brain, evaluated as 10 percent disabling; and erectile dysfunction, evaluated as noncompensable. He was also service connected for tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids, psoriasis, and allergic rhinitis, each evaluated as noncompensable. The combined evaluation was 60 percent and, as all ratable disabilities were not of a common etiology, the rating criteria were not met prior to August 5, 2011. Therefore, entitlement to TDIU on a schedular basis prior to this date may not be awarded. Although the Veteran did not meet the schedular criteria for consideration of TDIU prior to August 5, 2010, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b) (2017). TDIU on an extraschedular basis will be addressed in the remand section at the end of this decision. Entitlement to special monthly compensation based on the need for regular aid and attendance The appellant contends that the Veteran required assistance with his activities of daily living and his medications toward the end of his life. Special monthly compensation is payable where a veteran suffers from service-connected disability that renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l) (2012); 38 C.F.R. § 3.350(b). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need). Special monthly compensation provided by 38 U.S.C. § 1114(s) is also payable when service-connected disability may render the Veteran either A) statutorily housebound, or B) housebound in fact. For the first, the veteran needs a single service-connected disability rated as 100 percent disabling and additional service-connected disability or disabilities independently ratable at 60 percent. For the latter, a veteran is permanently housebound by reason of service-connected disabilities. A veteran is “housebound” when he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). It is noted that, in order for the veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in him being in need of regular aid and attendance or being housebound. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). As noted, a VA treatment record from March 2011 shows the appellant was having to administer the Veteran’s insulin to him, as he was having difficulty with accuracy due to worsening vision and shaky hands. The Veteran had a VA examination for housebound status or permanent need for regular aid and attendance that was conducted by a nurse practitioner in May 2012. He was hunched and walked with a walker, and the examiner noted that he had limited activity and mobility, that he needed assistance with ambulation and activities, and he only walked with a walker due to a history of falls. The Veteran was not blind or bedridden, but he was not able to dress or undress, walk unassisted, keep himself clean, or be unattended. He only walked within his home using a walker to go to the restroom. The Veteran required assistance to prepare his meals. The service connected diagnoses included chronic bronchitis, pneumonia, diabetes mellitus, degenerative joint disease, and tremors. The examiner opined that the Veteran required the daily personal health care services of a skilled provider without which he would require hospital, nursing home, or other institutional care. An addendum says that the Veteran was unable to dress or use the lavatory, climb or descend stairs, operate a wheelchair, or protect himself from the hazards and dangers incident to his daily environment without assistance. Another VA aid and attendance or housebound examination was conducted by a VA doctor in May 2013. His neuropathy and residuals of cerebral vascular disease prevented the Veteran from protecting himself from his daily environment. The Veteran was unable to feed himself, dress or undress, bath, groom or toilet. He could walk without assistance within the home with a cane. The Veteran had mild or moderate impairment of both upper extremities, with marked difficulty in self-feeding, dressing and undressing; bathing, grooming, and toileting. There was a lack of coordination in his lower extremities. A third VA examination for housebound status or permanent need for regular aid and attendance was conducted by the nurse practitioner in July 2013. The examiner found that the Veteran often needed help to feed himself due to tremors. He was unable to stand to prepare his own meals. The Veteran could not bathe himself, but the examiner added that this was due to non-service connected back pain. He was unable to hold his medication due to his tremors, so he relied on his wife to give him his medications. The Veteran used a wheelchair due to back and knee pain. He was not legally blind and did not require nursing care. His tremors made it difficult to feed himself, button his shirt, or shave. The Veteran was unable to bear weight or ambulate due to his persistent tremors, and there was limited range of motion and weight bearing due to pain. He wore diapers due to his neurogenic bladder. The Veteran did not walk, and he only left his home with his wife, who had to transfer him to and from the vehicle and wheelchair. His complete diagnosis included cervical spondylosis with myelopathy, diabetes type II, neuropathy, hypertension, and a neurogenic bladder. The Board finds that the criteria for special monthly compensation due to the need for regular aid and attendance have been met. The evidence demonstrates that the Veteran has both service connected and nonservice connected disabilities that make it impossible to care for himself. However, the Board believes that the residuals of the Veteran’s service connected diabetes mellitus and associated disabilities are sufficient to require aid and attendance. The Veteran was unable to feed or dress himself, bear weight or ambulate, take his medications, protect himself from his environment, or attend to the wants of nature due to the pain and weakness in his lower extremities and tremors throughout his body. All these symptoms have been associated with his diabetes or disabilities that are secondary to diabetes. They left the Veteran in need of regular aid and attendance, and the criteria for special monthly compensation are met. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. The Veteran contended that his sleep apnea was either incurred during service, or was incurred secondary to his service connected esophageal stricture. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b) (2017). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, evidence clearly establishes that the Veteran had a diagnosis of sleep apnea. Furthermore, while a July 2011 report of a private sleep study does not note or discuss the Veteran’s esophageal stricture, which is service-connected. The examiner’s recommendations said that an upper airway obstruction should be ruled out or explored further. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. As the July 2011 report appears to at least raise the possibility of a relationship between the Veteran’s service connected esophageal stricture and sleep apnea, the Board finds that an opinion that addresses whether there was an etiological relationship must be obtained. 2. Entitlement to an effective date prior to August 5, 2011 for TDIU. As noted, although TDIU may be granted if it was factually ascertainable that the Veteran was unable to obtain or maintain gainful employment during the year prior to August 5, 2011 date of claim, he did not meet the criteria for schedular consideration during this period. 38 C.F.R. § 4.16(a). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service (Director) for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Board is not authorized to award extraschedular benefits in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to a specialist in sleep studies or another appropriate examiner. After a review of the record, obtain an opinion regarding whether the Veteran’s sleep apnea was at least as likely as not incurred in or due to active service. The lay reports of snoring during service must be addressed. If the opinion is negative, the examiner should then state whether it is at least as likely as not the Veteran’s sleep apnea was incurred proximately due to his service-connected esophageal stricture. If the answer remains negative, the examiner should opine whether the sleep apnea was aggravated (increased in severity beyond its natural progression) by the esophageal stricture. If so, can a baseline state prior to aggravation be identified? If yes, describe this baseline. A comprehensive rationale is to be provided for any opinion expressed. 2. Forward the Veteran’s claims file to the Director, Compensation Service to consider whether the Veteran is entitled to TDIU on an extraschedular basis (§ 4.16(b)) for the period from August 5, 2010 to August 4, 2011. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues. If the benefit sought is not granted to the appellant’s satisfaction, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel