Citation Nr: 18154372 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-22 471 DATE: November 29, 2018 ORDER The application to reopen the claim of entitlement to service connection for bilateral tinnitus is granted. The application to reopen the claim of entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for osteoarthrosis of the right shoulder is denied. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine is denied. Entitlement to an evaluation of 20 percent for left lower extremity radiculopathy is granted. Entitlement to an evaluation of 20 percent for right lower extremity radiculopathy is granted. Entitlement to an evaluation in excess of 60 percent for coronary artery disease is denied. Entitlement to an effective date earlier than July 1, 2014, for the 60 percent evaluation for coronary artery disease is denied. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type 2 is denied. REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to a compensable evaluation for a left ear hearing loss disability is remanded. Entitlement to a total disability rating based upon individual unemployability is remanded. FINDINGS OF FACT 1. In a June 1995 rating decision, the RO denied the claim of service connection for a right ear hearing loss disability. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the June 1995 rating decision relates to a previously unestablished fact necessary to substantiate the claim of service connection for a right ear hearing loss disability. 3. In a June 1995 rating decision, the RO denied the claim of service connection for tinnitus. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 4. Evidence received since the June 1995 rating decision relates to a previously unestablished fact necessary to substantiate the claim of service connection for tinnitus. 5. Osteoarthrosis of the right shoulder was not manifest in service or within the one-year presumptive period following service. Osteoarthrosis of the right shoulder is not attributable to service. 6. Degenerative disc disease of the lumbar spine manifest as functional limitation of flexion better than 30 degrees. At no time was ankylosis shown, either of the thoracolumbar spine or the entire spine, and either favorable or unfavorable. 7. Left lower extremity radiculopathy manifest as moderate incomplete paralysis of the sciatic nerve. 8. Right lower extremity radiculopathy manifest as moderate incomplete paralysis of the sciatic nerve. 9. Coronary artery disease is not shown to have been productive of chronic congestive heart failure, or; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 10. The Veteran’s claim of service connection for coronary artery disease was received by VA July 1, 2014. 11. Diabetes mellitus type 2 was productive of regulation of diet, continuous oral medication, and a restriction of activities. The use of insulin was not required. CONCLUSIONS OF LAW 1. The June 1995 rating decision that denied service connection for a right ear hearing loss disability is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.156(b), 20.1103 (1994). 2. Evidence received since the June 1995 rating decision is new and material and the claim of service connection for a right ear hearing loss disability is reopened. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The June 1995 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.156(b), 20.1103 (1994). 4. Evidence received since the June 1995 rating decision is new and material and the claim of service connection for tinnitus is reopened. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2017). 5. Osteoarthrosis of the right shoulder was not incurred in or aggravated during service and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 7. The criteria for an evaluation of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. 3.321, 3.400, 4.1, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017). 8. The criteria for an evaluation of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. 3.321, 3.400, 4.1, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017). 9. The criteria for an evaluation in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.104, Diagnostic Code 7005 (2017). 10. The criteria for an effective date earlier than July 1, 2014, for the 60 percent evaluation of service-connected coronary artery disease have not been met. 38 U.S.C. §§ 5100, 5110 (2012); 38 C.F.R. §3.400 (2013). 11. The criteria for an evaluation in excess of 20 percent for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013, December 2014, and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was raised by the record or asserted by the Veteran. See August 2015 Board hearing transcript. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation. Id. A May 2015 Statement of the Case (SOC) stated the issue on appeal as the evaluation of diabetes mellitus and earlier effective date for the same. The February 2015 Notice of Disagreement, however, did not actually state a disagreement with the effective date for the issue of diabetes mellitus. As a Notice of Disagreement is required to confer jurisdiction of the appeal of an issue on the Board, the Board does not have jurisdiction of the issue of an earlier effective date for diabetes mellitus. The Board, therefore, does not address the issue. The Veteran or his representative submitted additional evidence since the Veteran filed his substantive appeal in June 2015. Neither the Veteran nor his representative requested in writing that this additional evidence be reviewed by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board may review the additional evidence in the first instance. See 38 U.S.C. § 7105(e) (Supp. 2014). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral tinnitus and for a right ear hearing loss disability. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In June 1995, the RO denied the Veteran’s claims of service connection for tinnitus and for a right ear hearing loss disability. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The RO’s denial of service connection was based on a finding that there was no manifestation of sensorineural hearing loss of the right ear or tinnitus during service or the one-year presumptive period following service. The evidence considered by the RO was service treatment records from April 1970 to August 1990, VA treatment records from September 1994, and a VA examination from February 1995. The February 1995 VA examination report specifically referenced the Veteran’s claim that tinnitus began in 1993. The VA treatment record received prior to the first rating decision established a hearing loss disability for VA purposes in the right ear. It also stated that bilateral tinnitus had a sudden onset in 1993. The February 1995 VA examination report indicated the Veteran experienced hearing loss and tinnitus for approximately ten years. The examination report concedes noise exposure. Since the June 1995 rating decision, a June 2013 VA audiology examination was conducted and the examination report was associated with the claims file. The examination report details additional facts that were not brought to light prior to the June 1995 rating decision. These facts relate to the Veteran’s history of noise exposure post-service. For instance, the report stated that the Veteran wore hearing protection in his post-service occupation. As this evidence has a bearing on the relationship to service, the Board finds the evidence is new and material and the claims are reopened. The Board notes that, although military personnel records were associated with the claims file since the June 1995 rating decision, they are irrelevant to the issues of service connection for hearing loss and tinnitus. Thus, reconsideration of the original hearing loss and tinnitus claims are not warranted. 2. Service connection for osteoarthrosis of the right shoulder The Veteran seeks service connection for a right shoulder disorder. In the August 2015 Board hearing, the Veteran testified that he had bursitis in his shoulders and was given shots for it. He suggests that the conditions in service in which he slept on hard ground for twenty years and in the cold and now contributed to his shoulder disorder. Furthermore, he asserts that during service, a tent fell on his shoulders, he passed out and was taken to hospital. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of mild acromioclavicular joint osteoarthrosis, and evidence shows that the Veteran complained of shoulder pain on two occasions in service, the preponderance of the evidence weighs against finding that the Veteran’s right shoulder disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board can find no support in the medical records for an injury from a tent falling on his shoulders or a loss of consciousness in general. The June 2013 VA medical examination is the first identification of acromioclavicular joint osteoarthrosis, which is decades after his separation from service. The Report of Medical Examination at retirement showed normal upper extremities. The Report of Medical History at retirement reported a history of degenerative joint disease (DJD) of the shoulders, however. No elaboration was provided as to the circumstances of the DJD, such as how the history was determined (i.e. whether Veteran’s self-report or via records review), when the DJD was present, etc. In light of the normal finding on the clinical evaluation at separation and the lack of any substantiating detail, the Board finds the report of a history of DJD of the shoulders not to be credible. The Board acknowledges a February 1972 service treatment record showing soreness in the right shoulder from picking up crates. The Veteran reported that he could not raise his arm above his head at that time. He was prescribed medication. A June 1973 X-ray showed the right shoulder was within normal limits. Subsequent Reports of Medical Examinations in March 1976, September 1980, and January 1988, as well as the retirement examination, showed normal upper extremities. Further, the July 2013 VA examiner opined that the Veteran’s mild acromioclavicular joint osteoarthrosis is not at least as likely as not related to an in-service injury, event, or disease. The examiner reasoned that the in-service right shoulder complaints represent acute and self-limiting conditions and portend to no chronic sequelae, and that the Veteran’s current right shoulder disability is most likely age-related. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of shoulder pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the current right shoulder disability. The issue is medically complex, as it requires knowledge of the interaction external forces on the anatomy, the body’s healing mechanisms, biomechanics, and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). This principle also applies to the Veteran’s contention that sleeping on hard surfaces and in the cold caused his shoulder disorder. On the whole, the Board gives more probative weight to the service examinations showing no upper extremity abnormality, and to the VA examiner’s opinion that the shoulder disorder is due to aging, than it does to the Veteran’s reports of injury by a tent falling on his shoulder or cold and hard surfaces as the cause of the shoulder disorder. The examinations were conducted by medical professionals after objective evaluation. Accordingly, the preponderance of the evidence is against the claim. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 3. An evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine. The Veteran seeks an evaluation in excess of 20 percent for his service-connected disorder of the lumbar spine. The disability has been evaluated under Diagnostic Code 5243, for intervertebral disc syndrome. VA received the Veteran’s claim for an increase in November 2011. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, incapacitating episodes of at least four weeks, the requisite duration to support a higher disability rating, are not shown. See June 2013 VA examination report. During the appeal period the Veteran underwent a VA examination in June 2013. Range of motion testing was performed and showed, at worst, forward flexion to 90 degrees and a combined range of motion no less than 240 degrees. During the examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. To warrant a higher rating, functional limitation of motion would need to approximate a limitation of motion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. This represents a required increase in limitation of motion of at least 60 degrees, which the Board does not see justified by the subjective reports. Specifically, during the June 2013 examination, the Veteran reported flare-ups that occur about once per day, lasting from 30 or 45 minutes to up to 2 or 3 days. These flare-ups consist of increased pain and stiffness in which the Veteran can hardly bend and which greatly decrease his level of activity. The report of flare-ups shows a wide swing in duration, which indicates unreliability as evidence. Treatment records do not show greater limitation of motion than the examination findings or additional functional limitations. Given the above, a higher rating is not warranted based on limitation of motion. 4. An evaluation in excess of 10 percent for left lower extremity radiculopathy and an evaluation in excess of 10 percent for right lower extremity radiculopathy. The Veteran seeks ratings higher than 10 percent for right and left lower extremity radiculopathy. Each extremity has been evaluated separately under Diagnostic Code 8520, for mild, incomplete paralysis of the sciatic nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or lost. The Board acknowledges that words such as “moderate,” “moderately severe,” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although 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. Under 38 C.F.R. § 4.123 (2017), neuritis (characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating) is to be rated on the scale for the nerve involved, with a maximum equal to severe incomplete paralysis. This code further provides that for neuritis (other than for the sciatic nerve) not characterized by the organic changes referred to the maximum rating will be that for moderate incomplete paralysis. Under 38 C.F.R. § 4.124 (2017), neuralgia (characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve) is to be rated with a maximum equal to moderate incomplete paralysis. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2017). The June 2013 VA examination report showed moderate constant pain in the right and left lower extremities. It showed moderate paresthesias and/or dysesthesias in both lower extremities. It showed severe numbness in the lower extremities. Muscle strength was normal, with no muscle atrophy. Deep tendon reflexes were normal. The sensory examination was normal. The examiner indicated the radiculopathy was mild in each lower extremity. Little other evidence sheds additional light on the severity of the radiculopathy during the appeal period. Treatment records reiterate numbness and tingling in the feet and legs, although they indicate weakness in the legs on occasion. When reconciling the medical reports into a consistent disability picture, the Board finds that an evaluation of 20 percent in each lower extremity is warranted. The persuasive evidence is the June 2013 VA examiner’s description that pain and paresthesias in the legs were moderate and that numbness was severe. The Board finds the objective muscle strength testing is more probative than the Veteran’s reports of weakness because the muscle strength testing is an objective test. 5. An evaluation in excess of 60 percent for coronary artery disease and an effective date earlier than July 1, 2014, for the evaluation. The Veteran seeks an evaluation in excess of 60 percent for his service-connected coronary artery disease (CAD). He further seeks an effective date effective date earlier than July 1, 2014, for the evaluation. The 60 percent evaluation is effective from the date of the award of service connection. Accordingly, the only way to obtain an effective date for the evaluation earlier than July 1, 2014, is to obtain an earlier effective date for the award of service connection. VA received the Veteran’s claim of service connection for ischemic heart disease on July 1, 2014. Neither the Veteran nor his attorney have identified the date they believe the award of service-connection for coronary artery disease should be effective. The Board finds that no earlier effective date is warranted. Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100(b)(1) (2012); 38 C.F.R. § 3.400(b) (2017). Effective dates assigned as part of the initial award of service connection, i.e. “initial evaluations,” are considered to belong in this category. The 60 percent evaluation at issue here is an initial evaluation, therefore, the foregoing criteria apply. Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior regulations held that a claim was a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2013). Effective for claims filed on or after March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The Board emphasizes that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (citing to the rule of 38 U.S.C. § 5110(a) that the effective date shall be fixed in accordance with “facts found”). Here, the claim was received prior to the effective date of the new regulations. VA received a statement in support of claim from the Veteran on July 1, 2014. No other communication prior to this evidenced an intent to apply for benefits for this disability. To the extent that the Veteran contends that medical records may have constituted an informal claim, such cannot constitute an informal claim under 38 C.F.R. § 3.155 as treatment records do not indicate an intent to apply for service connection benefits. 38 C.F.R. § 3.155 (a). Although the provisions of 38 C.F.R. § 3.157 allow for a report of examination or hospitalization by VA to be accepted as an informal claim for benefits (without any indication of intent to apply for benefits) in certain instances, these provisions are limited to instances where the Veteran is applying for an increased rating where service connection or pension has already been established, or when a claim for compensation was previously disallowed for the reasons that the service-connected disability was noncompensable, none of which apply in this case. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). In addition, the mere mention of a medical record alone cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). Accordingly, an earlier effective date is not warranted. Next, the Board evaluates whether a higher rating is warranted. The Veteran’s CAD has been rated under Diagnostic Code 7005. Under Diagnostic Code 7005 (arteriosclerotic heart disease/coronary artery disease), a 10 percent rating is assigned for a workload of greater than 7 METs but not greater than 10 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating is assigned for a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent to 50 percent. Id. A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent. Id. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Thus, for the higher, 100 percent rating, the evidence must show the severity of his disability approximates: chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, LVEF of less than 30 percent. The Board finds none of these are present or approximated. An October 2014 VA examination revealed the Veteran has not had congestive heart failure at any time. The report noted that a September 2014 echocardiogram showed LVEF was 55 percent, well above the 30 percent threshold required for the 100 percent evaluation. Interview-based METs testing resulted in a finding of greater than 3 METs to 5 METs. The examiner found the METs level may be affected by additional disorders, including obesity, which results in exercise intolerability. This suggests that the METs result is not entirely due to the service-connected heart disorder, thus, weakening any argument that this result approximates the next higher criteria. As no criteria for a higher evaluation is met, one is not warranted. 6. An evaluation in excess of 20 percent for diabetes mellitus type 2. In this case, the Veteran’s diabetes mellitus type 2 (DM) has been assigned a 20 percent disability evaluation under Diagnostic Code 7913, which falls under the Schedule of Ratings for the Endocrine System, found in 38 C.F.R. § 4.119. Under Diagnostic Code 7913, which specifically addresses evaluation of diabetes mellitus, a 20 percent evaluation is assigned where diabetes requires insulin and restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent evaluation is assigned where diabetes requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent evaluation is assigned where the disease requires insulin, a 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 evaluation is assigned where diabetes requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. 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 (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The Board notes that “regulation of activities” is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as “avoidance of strenuous occupational and recreational activities.” Id. Although not specified in the rating criteria, the Board finds that this definition also applies to the “regulation of activities” discussed in the 40 percent and 60 percent disability ratings under Diagnostic Code 7913. Additionally, the Board notes that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Further, in light of the conjunctive “and” in the criteria for a 40 percent disability rating under Diagnostic Code 7913, all criteria must be met to establish entitlement to a 40 percent rating. See, e.g., Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013); Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by “and”); Malone v. Gober, 10 Vet. App. 539 (1997) (construing “and” as conjunctive in a statute); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that “or” in the rating criteria shows that each is an independent basis for granting that rating). Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran’s service-connected DM does not more nearly approximate a rating in excess of 20 percent for the entire rating period on appeal. The evidence shows the Veteran’s DM is managed by a restricted diet and via the use of prescribed oral hypoglycemic agents. See October 2014 VA examination report. Insulin is not required. See id. The October 2014 VA examination report noted that the diabetes requires regulation of activities. The report explained that the Veteran must walk every day, but if he does any strenuous activities, it may lead to hypoglycemia. As to other criteria, diabetic care for episodes of ketoacidosis or hypoglycemic reactions occurs less than two times per month, and the Veteran has had no hospitalization for episodes of ketoacidosis or hypoglycemic reactions in the prior twelve months. The Veteran had no progressive unintentional weight loss. As noted above, the criteria for a higher evaluation are conjunctive. All of the criteria must be met under each evaluation. Here, the Veteran does not use insulin. Thus, not all criteria are met in the several higher evaluations. Accordingly, a higher evaluation is not warranted. As to complications, the Veteran is shown to have diabetic peripheral neuropathy. The Board notes that symptoms associated with peripheral neuropathy, such as pain, numbness, and dysesthesia, have been addressed in the evaluations for right and left lower extremity radiculopathy. No other complication was present. REASONS FOR REMAND 1. Service connection for a right ear hearing loss disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a right ear hearing loss disability because no VA examiner has opined whether the disability is due to hazardous noise exposure during service. A February 1995 medical reports notes that bilateral, moderate high frequency sensorineural hearing loss was probably noise related, however, it does not explain whether it was in-service noise or other noise. 2. Service connection for bilateral tinnitus is remanded. The Board cannot make a fully-informed decision on the issue of service connection for tinnitus because no VA examiner has opined whether the disability is due to hazardous noise exposure during service. 3. A compensable evaluation for a left ear hearing loss disability is remanded. Because a decision on the remanded issue of service connection for right ear hearing loss could impact a decision on the issue of the evaluation of left ear hearing loss, the issues are inextricably intertwined. A remand of the claim for the evaluation of left ear hearing loss is required. 4. A total disability rating based upon individual unemployability is remanded. The Veteran raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) during the pendancy of the appeal. The AOJ should develop and adjudicate the issue. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right ear hearing loss disability began in service, was caused by service, or is otherwise related to service, to include whether related to hazardous noise exposure during service. Note the February 1995 examination report showing the Veteran’s assertions of a history of hearing loss for approximately 10 years. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s tinnitus began in service, was caused by service, or is otherwise related to service, to include related to hazardous noise exposure during service. Note the February 1995 examination report showing the Veteran’s assertions of a history of tinnitus for approximately 10 years. 3. Ask the Veteran to complete a TDIU claim form. After completing these actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel