Citation Nr: 18153070 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-38 292 DATE: November 27, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for a low back condition is denied. The application to reopen the previously denied claim of entitlement to service connection for a skin condition of the feet is granted. Service connection for glaucoma as secondary to diabetes mellitus is denied. An initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. A disability rating greater than 10 percent prior to September 2, 2014, and greater than 20 percent thereafter, for diabetes mellitus is denied. A disability rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. A disability rating of 20 percent for left lower extremity peripheral neuropathy is granted, effective December 31, 2011. A disability rating of 30 percent for right upper extremity peripheral neuropathy is granted, effective December 31, 2011. A disability rating of 20 percent for left upper extremity peripheral neuropathy is granted, effective December 31, 2011. REMANDED The following issues are remanded for further development: (1) entitlement to service connection for cataracts as secondary to diabetes mellitus; (2) entitlement to service connection for tinnitus, to include as secondary to right ear hearing loss; (3) entitlement to service connection for sleep apnea, to include as secondary to PTSD; (4) entitlement to service connection for a gastrointestinal disorder, including hiatal hernia and acid reflux, to include as secondary to PTSD; (5) entitlement to service connection for a skin condition of the feet, to include as secondary to diabetes mellitus; (6) an initial compensable disability rating for erectile dysfunction; (7) a disability rating greater than 10 percent for a fracture of the right malleolus; and (8) entitlement to a total disability rating based upon individual unemployability (TDIU). VETERAN’S CONTENTIONS The Veteran contends that he currently suffers from a low back disability, a skin condition of the feet, and glaucoma as a result of his active duty service. Alternatively, the Veteran also contends that these disabilities were caused or aggravated by other disabilities already acknowledged as service-connected by the Department of Veterans Affairs (VA). Turning to the issues of PTSD, diabetes mellitus, and peripheral neuropathy, the Veteran contends that current ratings assigned to these service-connected disabilities do not adequately capture their severity. FINDINGS OF FACT 1. In a June 1990 rating decision, a VA Regional Office (RO) denied a claim for service connection for a low back condition. The issue was most recently denied again in a September 2004 rating decision. Evidence received since the September 2004 rating decision does not relate to prior unestablished facts. 2. The claim for service connection for a skin condition of the feet was most recently denied in an October 1997 Board of Veterans’ Appeals (Board) decision. Evidence received since the October 1997 Board decision relates to prior unestablished facts. 3. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of glaucoma. 4. For the entire claim period, the evidence of record demonstrates that the Veteran’s PTSD was productive of symptoms resulting in occupational and social impairment with deficiencies in most areas. 5. Prior to September 2, 2014, the Veteran’s service-connected diabetes mellitus was managed by a restricted diet and exercise. He was first prescribed an oral hypoglycemic agent on September 2, 2014. At no point during the appeal period has the Veteran’s diabetes mellitus required a regulation of activities and injections of insulin at least once a day. 6. The Veteran’s peripheral neuropathy of the right lower extremity is best classified as moderate incomplete paralysis of the sciatic nerve. 7. The evidence of record indicates that, effective December 31, 2011, the Veteran’s peripheral neuropathy of the left lower extremity can be best classified as moderate incomplete paralysis of the sciatic nerve. 8. The evidence of record indicates that, effective December 31, 2011, the Veteran’s peripheral neuropathy of the right upper extremity can be best classified as moderate incomplete paralysis of the median nerve. The Veteran is right hand dominant. 9. The evidence of record indicates that, effective December 31, 2011, the Veteran’s peripheral neuropathy of the left upper extremity can be best classified as moderate incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The September 2004 rating decision is final; new and material evidence has not been received to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The October 1997 Board decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a skin condition of the feet. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1103, 20.1104. 3. The criteria for service connection for glaucoma are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 4. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD are met, effective August 31, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 5. The criteria for a disability rating greater than 10 percent prior to September 2, 2014, and greater than 20 percent thereafter, for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913; Camacho v. Nicholson, 21 Vet. App. 360 (2007). 6. The criteria for a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 7. The criteria for a separate disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy are met, effective December 31, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 8. The criteria for a separate disability rating of 30 percent, but no higher, for right upper extremity peripheral neuropathy are met, effective December 31, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515. 9. The criteria for a separate disability rating of 20 percent, but no higher, for left upper extremity peripheral neuropathy are met, effective December 31, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to December 1970, including combat service in the Republic of Vietnam. These matters are before the Board on appeal from January 2014, April 2014, and July 2016 rating decisions of a VA RO. Jurisdiction of the Veteran’s claims file currently resides with the St. Petersburg, Florida RO. New and Material Evidence As indicated above, the Board finds that new and material evidence has been received to reopen a claim for service connection for a skin condition of the feet. However, the Board finds that new and material evidence has not been received to reopen a claim for service connection for a low back condition. Regarding the low back, the Board first notes that this issue was initially denied in a June 1990 rating decision as the RO found that there was no evidence demonstrating a nexus between a then-present low back condition and the already service-connected fracture of the right malleolus. The Veteran was notified of this decision via a letter issued later in June 1990 and he neither appealed nor submitted any evidence within one year of notification. Accordingly, the June 1990 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thereafter, the Veteran again submitted a claim for service connection for a low back condition and, in a March 1998 rating decision, the RO declined to reopen the issue. The Veteran was notified of this decision in April 1998 and the decision became final. Lastly, the Veteran submitted another claim for service connection for a low back condition in May 2004. In a September 2004 rating decision, the RO reopened the claim but continued its denial as it found no nexus between a low back condition and service. The Veteran was notified of this decision later in September 2004. Again, he neither appealed nor submitted any evidence within one year of notification. As such, the September 2004 became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Comparatively, the issue of service connection for a skin condition of the feet was most recently addressed by the Board in October 1997. In that instance, the Board denied service connection for fungus of the feet—which it identified as tinea pedis—and stated that there was no evidence of an in-service incurrence or a nexus between the current diagnosis of tinea pedis and service. Generally, Board decisions are final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). The Veteran neither requested reconsideration nor appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is “new” if it was not previously submitted to agency decision makers. Evidence is “material” if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regarding his low back condition, since the September 2004 rating decision, the Veteran has submitted VA and private treatment records, and argumentation by his representative. This evidence is “new”—i.e., materials not previously submitted to agency decision makers—but it is not material. Specifically, the Veteran has not submitted competent evidence regarding a nexus between a current low back condition and service, to include as caused or aggravated by the fracture of the right malleolus. Accordingly, the Board declines to reopen entitlement to service connection for a low back condition. Comparatively, the Board finds that new and material evidence has been received regarding the issue of service connection for a skin condition of the feet. Specifically, in February 2014, a VA clinician examined the Veteran and provided an etiological opinion regarding a possible link between skin conditions of the feet and diabetes mellitus. This evidence is new and relates to prior unestablished facts necessary to establish service connection. As such, the Board reopens this claim. Service Connection for Glaucoma As indicated above in the Conclusions of Law section, the Board finds that service connection for glaucoma as secondary to diabetes mellitus is not warranted. As such, this issue is denied. In making this determination, the Board finds that the Veteran does not have a current diagnosis of glaucoma and has not had one at any time during the pendency of the claim or proximate to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Here, the Veteran first submitted his claim in December 2012. During the pendency of the claim—or immediately preceding filing—he did not receive a diagnosis of glaucoma from a medical professional. Indeed, during an October 2013 VA diabetes examination, the examiner indicated that the Veteran did not have any complications due to diabetes. Additionally, in February 2014, the Veteran was afforded a VA eye conditions examination. After evaluating the Veteran, the examiner did not provide a diagnosis of glaucoma. Separate from these VA examination reports, a review of medical treatment records associated with the Veteran’s claims file does not reveal a current diagnosis of glaucoma. The Board acknowledges that while the Veteran believes he has a current diagnosis of glaucoma, he is not competent to provide a diagnosis in this case. This issue is medically complex, as it requires specialized medical knowledge and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board places less probative value on the Veteran’s lay statements wherein he relayed or provided a self-diagnosis. In conclusion, as the record does not demonstrate that the Veteran has a current diagnosis of glaucoma, service connection is not warranted. As such, the Board must deny this issue on appeal. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Increased Rating for PTSD As indicated above, the Board finds that the Veteran is entitled to an increased initial disability rating of 70 percent for PTSD. Accordingly, to this extent, the Board grants the Veteran’s appeal. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. In the instant case, the Board finds that an initial 70 percent rating is warranted primarily due to the findings recorded in an August 2011 VA PTSD examination report. Specifically, the VA examiner recorded that the Veteran suffered from the following symptoms attributable to PTSD: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene. Additionally, the examiner noted that the Veteran engaged in compulsive hoarding of old papers, bills, and clothing in his home. The Board notes that an inability to establish and maintain effective relationships as well as neglect of personal appearance and hygiene are symptoms included within the criteria for a 70 percent rating under the General Rating Formula for Mental Disorders. Additionally, in a December 2011 VA treatment record, the Veteran stated that he had passive ideations of death. Such thoughts are analogous to the criterion of suicidal ideation contained within the General Rating Formula. For Mental disorders. For these reasons, the Board assigns a 70 percent rating. On the other hand, the Board denies granting the next highest rating of 100 percent for PTSD. In support of this determination, the Board notes that, at no point during the appeal, did the Veteran’s PTSD present with symptoms listed—or analogous to—the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders provided above. As such, an initial rating higher than 70 percent is not warranted. Increased Rating for Diabetes Mellitus As stated previously in the Findings of Fact section, the Board finds that the Veteran was first prescribed an oral hypoglycemic agent for his diabetes mellitus on September 2, 2014. However, at no point during the appeal was his diabetes mellitus managed with a regulation of activities and at least one injection of insulin per day. As such, the Board cannot grant a disability rating higher than 10 percent prior to September 4, 2014, nor a disability rating greater than 20 percent thereafter. The Veteran’s appeal is denied. In support of this determination, the Board first notes that the Veteran is currently in receipt of a 10 percent rating for his diabetes prior to September 2, 2014, and a 20 percent rating thereafter. These ratings were assigned pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this diagnostic code, a 20 percent rating is warranted when diabetes requires the use of insulin or oral hypoglycemic agents, and a restricted diet. To warrant a higher 40 percent rating, the evidence must show that the Veteran’s diabetes required insulin, a restricted diet, and regulation of activities. The criteria for even higher evaluations, including 60 percent, include the requirements for the 40 percent rating plus additional symptomatology. Importantly, the criterion of regulation of activities for control of diabetes is required for each rating above 20 percent. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities, and medical evidence is required to support that such avoidance is medically necessary. Camacho v. Nicholson, 21 Vet. App. 360, 361, 364 (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 Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Here, VA treatment records received in July 2016 indicate that the first time the Veteran was prescribed metformin—an oral hypoglycemic agent—was on September 2, 2014. Prior to that date, the Veteran’s diabetes mellitus was managed through exercise and a restricted diet. Accordingly, as there is no indication that the Veteran (1) was using an oral hypoglycemic agent, or (2) was using injectable insulin in addition to a restricted diet prior to September 2, 2014 it must deny a rating higher than 10 percent. Additionally, for the entire appeal period—including the time period commencing September 2, 2014—the Board finds that the Veteran’s diabetes did not require the regulation of activities as defined in Camacho. As such, the Veteran’s appeal is denied. Increased and Separate Compensable Ratings for Peripheral Neuropathy As stated previously, Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Noncompensable complications are also considered part of the diabetic process under Diagnostic Code 7913. Id. In this case, the record so far indicates that the Veteran has the following diagnosed diabetic complications: (1) bilateral lower extremity peripheral neuropathy, and (2) bilateral upper extremity peripheral neuropathy. This finding has no impact upon the issues of service connection for cataracts and a skin condition of the feet, remanded below. Regarding the right and left lower extremities, the Board finds that, effective December 31, 2011, the Veteran met the criteria for a diagnosis of peripheral neuropathy associated with his diabetes which resulted in moderate incomplete paralysis of the left sciatic nerve. Under Diagnostic Code 8520, such warrants the assignment of a separate 20 percent rating. Similarly, regarding the right and left upper extremities, the Board finds that, effective December 31, 2011, the Veteran met the criteria for a diagnosis of peripheral neuropathy associated with his diabetes which resulted in moderate incomplete paralysis of the median nerves. Under Diagnostic Code 8515, such symptoms warrant the assignment of a 30 percent rating for the major (dominant) extremity and 20 percent for the minor (non-dominant) extremity. As recorded in a December 2017 VA treatment record, the Veteran is right-hand dominant. The Board assigns December 31, 2011 as the effective dates for all of these ratings pursuant to 38 C.F.R. § 3.400(o) as these issues were part and parcel of his diabetes mellitus increased rating claim. Under 38 C.F.R. § 3.400(o)(2), the Board may assign a retroactive effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred within the year prior to claim filing. As the claim regarding diabetes mellitus was filed on December 31, 2012, and evidence reflects the existence of peripheral neuropathy in the lower and upper extremities in the year preceding the filing of his increased rating claim, effective dates of December 31, 2011 are warranted. In support of this determination, the Board notes that in March 2011 —a few months prior to the December 31, 2011 appeal period—the Veteran reported for a consultation at a VA neurology clinic. The Veteran stated that he had a progressive numbness of the bilateral lower extremities starting at the toes about 10 years prior, which currently enveloped both of his feet. Additionally, he also complained of symptoms in both of his hands up to his wrists and stated that he occasionally found himself burning his hands while cooking but did not realize an item was too hot to touch. During a physical examination, the Veteran denied being able to discriminate pinprick, vibration sense, or temperature sensation. Light touch as well as muscle strength, bulk, and tone was intact. Deep tendon reflexes were normal for the lower extremities, but were diminished bilaterally for the biceps, triceps, and brachioradialis. The Veteran continued to complain of a tingling sensation in both feet during a January 2012 VA podiatry consultation. Thereafter, in March 2015, the Veteran reported for a VA rheumatology consultation and the clinician noted that the Veteran had a medical history that included mixed small and large fiber painful neuropathy. The Veteran complained that both of his hands were stiff, they cramped up in the morning and at night, he felt a burning and tingling sensation, and he dropped objects like keys, pens, and pencils. A physical examination revealed decreased grip strength bilaterally, left greater than right. Later, as recorded in an October 2016 VA neurology consultation, the Veteran stated that he experienced burning, numbness, and a pins-and-needles sensation in his feet. Additionally, he reported a burning sensation in his hands and a loss of strength. A physical examination revealed normal muscle tone and strength. However, deep tendon reflexes were diminished in the bilateral lower and upper extremities, and sensory tests revealed decreased light touch in the left arm and leg as well as decreased vibration in the toes. Similar results were recorded in a May 2017 VA neurology note. From the above evidence, the Board concludes that the Veteran’s peripheral neuropathy is most analogous to moderate incomplete paralysis of the median nerves because the Veteran described—and physical examinations revealed—sensory disturbances as well as diminished reflexes. However, regarding the upper extremities, the Board finds that the next-higher ratings of 50 and 40 percent are not warranted as the Veteran’s symptoms were not productive of symptoms which could be categorized as severe, including an absence of reflexes as well as a reduction in motor function or trophic changes. As such, the Board will not assign ratings higher than 30 percent for the right upper extremity and 20 percent for the left upper extremity under Diagnostic Code 8520. Similarly, the Board declines to assign ratings higher than 20 percent for the bilateral lower extremities as it finds that the Veteran’s lower extremity peripheral neuropathy is not better categorized as moderately severe incomplete paralysis of the sciatic nerves. Specifically, there was not any muscular atrophy in either lower extremity. Rather, the Veteran mostly experienced sensory disturbances and diminished reflexes. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS FOR REMAND Service Connection for Cataracts and Sleep Apnea The Board finds that remand is warranted for the issues of service connection for cataracts and sleep apnea for the provision of VA medical opinions. Specifically, the Board finds no VA medical opinion of record regarding the issue of cataracts although an examination was provided in February 2014. Additionally, regarding sleep apnea, an opinion is needed regarding a possible relationship between the Veteran’s currently-diagnosed sleep apnea and his service-connected PTSD. Service Connection for Tinnitus and a Gastrointestinal Disorder The Board finds that remand is warranted for the issues of service connection for tinnitus and a gastrointestinal disorder, including acid reflux or hiatal hernia, for the provision of additional medical opinions. Specifically, regarding tinnitus, the Board finds that a medical opinion is needed regarding any relationship between the Veteran’s current tinnitus and service-connected right ear hearing loss. Comparatively, regarding a gastrointestinal disorder, a medical opinion is needed regarding any relationship between the Veteran’s current gastrointestinal symptoms and his current PTSD medication. Service Connection for a Skin Condition of the Feet Regarding this issue, the Board finds that an additional VA medical opinion is necessary as the one provided in February 2014 is inadequate for adjudicative purposes. Specifically, the examiner opined that it was less likely than not that a skin condition of the feet was proximately due to or the result of service-connected diabetes mellitus because the claimed skin conditions preceded the Veteran’s diabetes by many years. Additionally, the examiner stated that there was “no objective evidence” to support aggravation. Recently, in Frost v. Shulkin, the Court held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 29 Vet. App. 131, 134 (2017). The Court explained that “for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” Id. The Court’s holding in Frost renders the February 2014 VA medical opinion inadequate for adjudicative purposes. Accordingly, an additional opinion must be obtained prior to adjudication of this issue on the merits. An Initial Compensable Rating for Erectile Dysfunction The Veteran’s service-connected erectile dysfunction is currently rated as noncompensable. Erectile dysfunction is rated by analogy under 38 C.F.R. § 4.155b, Diagnostic Code 7522, which awards a 20 percent disability rating for a deformity of the penis with loss of erectile power. Recently, in Williams v. Wilkie, the Court defined “deformity” as a “distortion of the penis, either internal or external.” 2018 U.S. App. Vet. Claims LEXIS 1037, at *10 (Jan. 23, 2018). The Veteran has been afforded one VA examination regarding this issue in February 2014. The VA examiner recorded a diagnosis of erectile dysfunction and noted that the Veteran was not sexually active and had been prescribed oral medication with varying effects. But, the examiner did not state whether the Veteran’s penis exhibited a distortion, either internal or external—although the Veteran declined a physical examination of his penis at the time. Therefore, the Board is unable to adjudicate this claim without further clarification of the medical evidence, and remand is necessary for a new VA examination. A Disability Rating Greater than 10 Percent for Fracture of the Right Malleolus The Veteran was last afforded a VA examination in connection with this disability in October 2013. In a February 2016 VA treatment record, the Veteran reported to a rheumatologist that he was experiencing increasing post-traumatic ankle pain. The Court has held that VA’s statutory duty to assist includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Accordingly, in this case, the Board finds that a new VA examination is necessary as the February 2016 VA treatment record raises the possibility that symptoms associated with his service-connected fracture of the right malleolus may have worsened in severity since the October 2013 VA examination. TDIU Lastly, the Board finds the issue of entitlement to a TDIU to be raised by the record. However, it will remand this issue as it is inextricably intertwined with the other issues remanded for the provision of new VA medical examinations and additional VA medical opinions. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since March 2018. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of his cataracts. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cataracts are proximately due to the Veteran’s service-connected diabetes mellitus. (b.) Please state it is at least as likely as not (50 percent probability or more) that the Veteran’s cataracts were aggravated (worsened beyond natural progression) by the Veteran’s service-connected diabetes mellitus. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of his sleep apnea. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is proximately due to the Veteran’s service-connected PTSD. (b.) Please state it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was aggravated (worsened beyond natural progression) by the Veteran’s service-connected PTSD. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of his tinnitus. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s tinnitus is proximately due to the Veteran’s service-connected right ear hearing loss. (b.) Please state it is at least as likely as not (50 percent probability or more) that the Veteran’s tinnitus was aggravated (worsened beyond natural progression) by the Veteran’s service-connected right ear hearing loss. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of any gastrointestinal disorder, including acid reflux and hiatal hernia. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please identify all current gastrointestinal disorders by diagnosis, including acid reflux and/or hiatal hernia. (b.) For each disorder identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disorder is proximately due to medication prescribed in connection with his service-connected PTSD. (c.) For each disorder identified in part (a), please state it is at least as likely as not (50 percent probability or more) that the disorder was aggravated (worsened beyond natural progression) by medication prescribed in connection with his service-connected PTSD. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of any skin condition of the feet. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the any current skin condition of the feet is proximately due to the Veteran’s service-connected diabetes mellitus. (b.) Please state it is at least as likely as not (50 percent probability or more) that any current skin condition of the feet was aggravated (worsened beyond natural progression) by the Veteran’s service-connected diabetes mellitus. In providing the above opinions, the clinician is reminded that it is not necessary that diabetes mellitus be service-connected, or even diagnosed, at the time the skin condition is incurred. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 7. After Item (1) has been completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of his erectile dysfunction. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Additionally, the examiner should specifically address whether the Veteran’s erectile dysfunction constitutes or produces a distortion of the penis, either internal or external. If the examiner finds that the Veteran’s erectile dysfunction does not constitute or produce a distortion of the penis, he or she must provide a full and complete explanation for this opinion. 8. After Item (1) has been completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of his fracture of the right malleolus. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected condition, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion is additionally limited such that it could be qualified as “marked” (as opposed to “moderate”). Please explain why or why not. Additionally, the examiner should also indicate whether the Veteran suffers from ankle instability and if any pain associated with the fracture of the right malleolus can be differentiated from symptoms associated with lower extremity radiculopathy. The examiner is also asked to comment on and describe the functional impairment caused solely by the Veteran’s fracture of the right malleolus as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel