Citation Nr: 18155430 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-47 020 DATE: December 4, 2018 ORDER Entitlement to an effective date prior to August 22, 2016 for the increased 20 percent rating for left lower extremity sciatic peripheral neuropathy is denied. Entitlement to an effective date prior to July 14, 2016 for the grant of service connection for left upper extremity peripheral neuropathy is denied. Entitlement to an effective date prior to August 22, 2016 for the increased 20 percent rating for right lower extremity sciatic peripheral neuropathy is denied. Entitlement to an effective date prior to July 14, 2016 for the grant of entitlement to service connection for right upper extremity peripheral neuropathy is denied. Entitlement to total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, to include as due to exposure to Agent Orange is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity sciatic peripheral neuropathy is remanded. FINDINGS OF FACT 1. The Veteran submitted a claim of entitlement to service connection for bilateral upper extremity peripheral neuropathy on July 14, 2016. 2. The Veteran did not submit a claim of entitlement to increased ratings for his bilateral lower extremity peripheral neuropathy. 3. The VA examination which showed that the Veteran’s lower extremity peripheral neuropathy had increased in severity was provided on August 22, 2016. 4. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form, eliminating the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. 5. During the period on appeal (from July 14, 2016), the Veteran’s service-connected disabilities were rated as follows: diabetes mellitus (20 percent), left upper extremity peripheral neuropathy (20 percent), right upper extremity peripheral neuropathy (20 percent), right lower extremity peripheral sciatic peripheral neuropathy (10 percent prior to August 22, 2016, and 20 percent thereafter), left lower extremity sciatic peripheral neuropathy (10 percent prior to August 22, 2016, and 20 percent thereafter), right lower extremity femoral peripheral neuropathy (20 percent from August 22, 2016), left lower extremity femoral peripheral neuropathy (20 percent from August 22, 2016), tinnitus (10 percent), prostate cancer (100 percent prior to November 1, 2016 and 10 percent thereafter), erectile dysfunction (noncompensable), and left ear hearing loss (noncompensable). He had a combined 100 percent rating from July 14, 2016 to October 31, 2016, and a combined 90 percent rating from November 1, 2016. 6. The Veteran has a high school diploma and prior work experience as a truck driver. 7. Due to his service-connected disabilities, the Veteran has been unable to obtain or retain substantially gainful employment during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to August 22, 2016 for the increased 20 percent rating for left lower extremity sciatic peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. § 3.400 (2017). 2. The criteria for entitlement to an effective date prior to July 14, 2016 for the grant of service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. § 3.400 (2017). 3. The criteria for entitlement to an effective date prior to August 22, 2016 for the increased 20 percent rating for right lower extremity sciatic peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. § 3.400 (2017). 4. The criteria for entitlement to an effective date prior to July 14, 2016 for the grant of entitlement to service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. § 3.400 (2017). 5. The criteria for entitlement to total disability based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. §§ 3.340, 3.341 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from December 1963 to November 1969. His service included service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2016 (peripheral neuropathy, hearing loss, and TDIU) and October 2016 (hypertension) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The August 2016 rating decision, in part, granted an increased rating (from 10 percent to 20 percent) for bilateral lower extremity peripheral neuropathy. This grant included a change in the Diagnostic Code (DC) used to rate these disabilities, from DC 8522 (musculocutaneous nerve) to DC 8520 (sciatic nerve). The rating decision additionally provided separate 20 percent ratings for the right and left lower extremity femoral peripheral neuropathy under DC 8526. On the March 2017 notice of disagreement (NOD) (and that statement accompanying the NOD), the Veteran and his representative specifically appealed the rating and effective dates assigned to his bilateral lower extremity sciatic peripheral neuropathy. As such, only the 20 percent ratings under DC 8520 (sciatic nerve) are on appeal. The August 2016 rating decision additionally continued a noncompensable rating for left ear hearing loss. The Veteran’s hearing loss disability was initially granted service connection in an April 2008 rating decision, which assigned an initial noncompensable rating. On the March 2017 NOD, the Veteran and his representative argued for an earlier effective date for his left ear hearing loss. As his hearing loss was granted in an April 2008 rating decision, and his noncompensable rating had continued from that rating decision, this is a “free-standing” earlier effective date. The United States Court of Appeals for Veterans Claims (Court) has held that after a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). “Free-standing” earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. The Court therefore held that VA has no authority to adjudicate a “free-standing” earlier effective date claim in an attempt to overcome the finality of a prior decision. Id. at 299. As the claim for an earlier effective date related to the Veteran’s left ear hearing loss was “free-standing,” the RO did not address it in the August 2017 Statement of the Case (SOC). Lastly, a March 2018 rating decision increased the Veteran’s prostate cancer rating to 20 percent, continued his diabetes rating at 20 percent, continued his tinnitus rating at 10 percent, and denied TDIU. In May 2018, the Veteran’s representative submitted a NOD to the prostate cancer and diabetes ratings and the denial of TDIU. TDIU is granted in this decision. The Board will not remand the remaining increased rating claims for prostate cancer and diabetes mellitus for issuance of a SOC as the RO appears to be working on these claims. The Veteran was afforded VA examinations in September 2018, currently two months ago. Effective Date Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.160. The amended regulations apply only to claims filed on or after March 24, 2015. A specific claim in the form prescribed by the Secretary of the VA must be filed 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 1. Entitlement to an effective date prior to July 14, 2016 for the grant of service connection for bilateral upper extremity peripheral neuropathy Here, the Veteran filed his claim of entitlement to service connection for bilateral upper extremity peripheral neuropathy on July 14, 2016. The Veteran’s VA 21-536EZ, Fully Developed Claim form was signed and dated by the Veteran on July 14, 2016, and was faxed to VA on the same day. The claim form noted the Veteran was seeking service connection for upper extremity peripheral neuropathy and hypertension, and an increased rating for hearing loss. The claim did not include claims for increased rating for lower extremity peripheral neuropathy, or as applicable in this case, for diabetes. The Veteran’s peripheral neuropathy disabilities are secondary to his service-connected diabetes mellitus. The Veteran and his attorney have not provided any argument regarding why he is entitled to an earlier effective date for the grant of service connection for bilateral upper extremity peripheral neuropathy. At the time of his initial claim of entitlement to service connection for bilateral upper extremity peripheral neuropathy (July 14, 2016), the Veteran did not have a claim related to his service-connected diabetes mellitus pending. The Veteran’s claim of entitlement to service connection for diabetes mellitus was granted in an October 2009 rating decision. He did not submit a notice of disagreement with the initial rating provided at that time, and he has not filed a claim of clear and unmistakable error indicating that his upper extremity peripheral neuropathy should have been granted at that time. The record does not contain any medical or lay evidence related to upper extremity peripheral neuropathy between the October 2009 rating decision and the July 14, 2016 claim for service connection. Additionally, there is no evidence that the Veteran submitted an intent to file within a year of the July 14, 2016 formal claim. During an August 2016 VA examination, the Veteran was noted to have been diagnosed with peripheral neuropathy in “2016.” He reported that he had the feeling that bugs were crawling on his skin, that his hands were swollen when they were not, and that his hands were “tender;” these symptoms began “approximately 6 months ago.” The Board’s review of the Veteran’s VA treatment records does not reveal complaints or diagnosis related to upper extremity peripheral neuropathy prior to the August 2016 VA examination despite frequent visits to VA facilities. However, if the Veteran’s VA treatment record contained complaints related to upper extremity peripheral neuropathy prior to his July 14, 2016 claim, the effective date would not change. VA treatment records do contain a July 7, 2016 note related to a phone call between the Veteran and a VA nurse, where she relayed that he would “need to go through his VSO for the Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire to be completed by C&P.” There is no further indication of what the Veteran was seeking or had reported. The Veteran has not provided a separate lay statement to further explain this statement. Again, however, his formal claim was filed on July 14, 2016. An intent to file can be provided as an oral intent communicated to “designated VA personnel and recorded in writing. An oral statement of intent to file a claim will be accepted if it is directed to a VA employee designated to receive such a communication.” 38 C.F.R. § 3.155(a)(1)(iii). A VA nurse is not a VA employee designated to receive communication related to the filing of disability benefits. Additionally, if the communication does not provide the necessary information to be considered an intent to file, as it does not express even the general benefit sought. As noted above, the effective date assigned for the grant of service connection for a disability is the date of receipt of claim, or the date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (b) (2) (i). Here, if the Veteran’s symptoms began in February 2016, his claim is the later date. Therefore, entitlement to an effective date prior to July 14, 2016 for the grant of service connection for bilateral upper extremity peripheral neuropathy is not warranted. 2. Entitlement to an effective date prior to August 22, 2016 for the increased 20 percent ratings for bilateral lower extremity sciatic peripheral neuropathy As noted above, the Veteran and his attorney did not provide any argument as to why he is entitled to an earlier effective date for the grant of his increased ratings for bilateral lower extremity peripheral neuropathy. An October 2009 rating decision granted entitlement to service connection for diabetes mellitus and bilateral lower extremity peripheral neuropathy. The Veteran’s bilateral peripheral neuropathy was initially rated 10 percent, each, under DC 8522 (musculocutaneous/superficial peroneal nerve). The Veteran filed his claim of entitlement to service connection for upper extremity peripheral neuropathy in July 2016. He did not file a claim for an increased rating for his bilateral lower extremities. On August 22, 2016, the Veteran was afforded a VA peripheral nerve examination related to his service connection claim. He reported feeling as though his feet were swollen when they were not, a feeling of bugs crawling on him, and tenderness to his feet, especially when standing. He stated that these symptoms started approximately 6 months prior. The examiner found that the Veteran had moderate incomplete paralysis of the bilateral sciatic and femoral nerves. The August 2016 rating decision provided an increased 20 percent rating for his bilateral lower extremity peripheral neuropathy, under the new DC 8520 (sciatic). The rating decision additionally provided separate 20 percent ratings for bilateral lower extremity femoral peripheral neuropathy. The Veteran did not appeal the femoral separate grants/ratings. The increased 20 percent ratings were provided effective August 22, 2016, the date of the peripheral nerve examination which showed he had increased symptoms related to his peripheral neuropathy. To the extent that an effective date for an increased rating should not be assigned mechanically based on the date of an examination, but rather, predicated on when the increase in the level of disability can be ascertained, the Board notes that the Veteran reported that this increase in symptoms occurred 6 months prior to the August 2016 examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). This does not provide a definitive date, but a general “February 2016.” An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). “[A]n increase in a veteran’s service-connected disability must have occurred during the one-year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)). If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1). Since March 24, 2015, when medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. 38 C.F.R. § 3.400 (o)(2) (effective from March 24, 2015); 79 Fed. Reg. 57660, Standard Claims and Appeals Forms (Sept. 25, 2014) (to the extent a record that itself constitutes a claim is in existence as of the date this rule becomes effective and has not been identified and acted upon, this rule cannot extinguish that record’s status as a claim under the law that was in effect as of the time that record was created, to the extent it is ever identified as claim). Here, the Veteran did not file a formal claim for an increased rating for his bilateral lower extremity peripheral neuropathy; the RO provided the increased rating based on the evidence in the August 22, 2016 VA examination despite the Veteran not having submitted the standard forms now required for claims. Thus, to whatever extent there may be treatment records related to his lower extremity neuropathy, there is no claim date from which to work back to determine if the increase was within one year of the submission of the claim. Essentially, in this case, the Veteran was provided increased benefits based on the VA examination on August 22, 2016 without having sought these additional benefits. He is now claiming that he should have been provided these additional benefits from an unknown prior date, despite not seeking the additional benefits through a formal or informal (which are no longer applicable after March 24, 2015) claim. The Board finds that an effective date prior to August 22, 2016 is not warranted for the increased 20 percent ratings provided for the Veteran’s bilateral lower extremity sciatic peripheral neuropathy. 3. Entitlement to total disability based on individual unemployability (TDIU) In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran has made statements that his service-connected disabilities have rendered him unable to work, and that he was seeking entitlement to TDIU. In December 2017, the Veteran filed a formal claim for TDIU. As such, the Veteran’s TDIU claim is considered as part of his increased rating claims/initial rating claims filed on July 14, 2016. As discussed below, the Board finds that the Veteran is entitled to TDIU from July 14, 2016. The Veteran’s formal TDIU claim indicates that he graduated from high school and had no additional education or training. He reported a work history as a self-employed truck driver from 2005 to 2007, and as a truck driver for a company from 2008 to the summer of 2010. He had not worked since 2010. On his form, he indicated that he was no longer able to work due to his diabetes mellitus, peripheral neuropathy, tinnitus, hearing loss, and prostate cancer. On an accompanying affidavit submitted in December 2017, the Veteran reported that as a truck driver he had to “drive long hours, and using a large truck require[d] coordination between one’s feet and arms for shifting gears and maneuvering.” He stated that as his radiculopathy became worse it was harder to maintain this effort for the long hours required by the position. He also stated that severe pain in his feet made it difficult to balance and he was at risk of falling during the periods he was not driving. “This [was] especially dangerous, as falling off of a truck with piles of lumbar around could mean injury or even death. Due to the combine effect of [his] conditions, [he] had to quit working completely in the summer of 2010.” He also stated that in the past five years his bilateral upper and lower extremity peripheral neuropathy had worsened such that he had a constant throbbing pain in his feet, mild numbness, and a feeling that his feet were swollen. He could not walk without specially-made shoes, and he had to use a walking stick to get around his house due to leg weakness and cramps. His hands also felt weak, and he could only lift about 15 pounds. He had spasms in his fingers and hands about four times per week, and would have to run his hands under warm water for several minutes until they “released.” Due to his diabetes he had to watch his food intake, and if his blood sugar dropped too low, it was difficult to get out of bed. He noted that, although his prostate cancer was in remission, he continued to have urinary frequency, needing to use the rest room four to five times per day. August 2016, March 2018, and September 2018 VA examinations showed the Veteran had mild incomplete paralysis of the upper median and ulnar nerves (bilateral upper extremity peripheral neuropathy), and moderate incomplete paralysis of the sciatic and femoral nerves (bilateral lower extremity peripheral neuropathy). A September 2016 EMG showed bilateral lower extremity and right upper extremity moderate to severe demyelinating axonal sensorimotor peripheral neuropathy. The Veteran was noted to have pain to the plantar aspect of his feet with standing and walking. The March 2018 examiner noted that the Veteran retired 10 years prior “due to gout;” he was unable to stand or walk for prolonged periods and unable to lift more than 25 pounds frequently. Presumably these limitations are related to his peripheral neuropathy, as those were the issues being addressed in the examination. A March 2018 diabetes mellitus examination noted his diabetes was managed by a restricted diet and oral hypoglycemic agents. He had not required hospitalization for ketoacidosis or hypoglycemic reactions in the past year. During the hearing loss examination, the Veteran reported he had difficulty hearing in noisy environments, in group situations, hearing from a distance, and was not able to hear clearly. Regarding his hearing, the examiner noted that with proper hearing or adaptive devices, the Veteran would not have work restrictions. During his February 2018 prostate cancer VA examination, the Veteran was noted to have a residual of urinary incontinence that require wearing absorbent material, with changing once per day, nocturia up to four times per night, and daytime voiding intervals of between two and three hours. The examiner noted that the Veteran was limited to exerting 20 to 50 pounds of force occasionally, and up to 25 pounds frequently due to his prostate cancer and residuals. An August 2016 diabetes VA examination included that the Veteran’s ability to work was impacted due to unsure footing, with occasional falls. He stated he had to use extra caution when walking due to this condition, and that he had decreased grip strength in his hands, which affected his ability to carry things, open container, or operate equipment. VA treatment records include a June 2016 primary care record where it was noted the Veteran worked part-time. An August 2013 primary care record where the Veteran reported he was retired, but working a part-time job “with deliveries.” A May 2012 mental health record noted the Veteran drove trucks during military service, and worked as a civilian truck driver for 10 years, owning his own truck. During April 2011 mental health treatment, the Veteran reported that he was a truck mechanic in service, and worked in Las Vegas as a valet for 20 years. He then worked as a detention officer for the Las Vegas police department before moving to Alabama and driving trucks for several years. He last worked for three years as a school bus driver. He reported difficulty sleeping, which he believed was due to posttraumatic stress disorder (PTSD) related to his service in Vietnam. The Veteran is not currently service-connected for PTSD. In a May 2018 brief, the Veteran’s attorney argued that he is entitled to TDIU due to his upper and lower extremity peripheral neuropathy causing constant swelling, numbness, and cramping pain which “inhibited the required effort to maintain his position” as a truck driver for a logging company. The Veteran also “relayed that his left ear hearing loss and tinnitus further impaired his ability to sufficiently operate within his employment provision.” The Veteran’s attorney argued that his earning history clearly indicated that he stopped working fulltime in 2010. In December 2017, the Veteran’s attorney submitted a copy of his taxed social security earnings, which did not show any earnings from 2011 to 2015. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16 (a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, for the period on appeal (from the increased rating/initial rating claim date of July 14, 2016) the Veteran’s combined disability rating meets the schedular requirements for entitlement to TDIU. The Veteran’s diabetes mellitus and peripheral neuropathy disabilities stem from a common etiology and may be considered “one disability” for the purposes of calculating the 40 percent rating under 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(a)(2). Additionally, based on the Veteran’s level of education and previous work experience, the Board finds that his diabetes mellitus, peripheral neuropathy, hearing loss, and tinnitus render him unable to obtain and maintain substantially gainful employment. The Veteran’s prior work history has included truck driving, school bus driving, valet parking, and work as a detention officer. His diabetes, peripheral neuropathy, and hearing difficulties would hinder him from obtaining and maintaining any employment requiring sustained use of his legs or fine manipulation of his hands, as well as limit his ability to work around machinery due to the safety concerns related to his unsure footing, hand cramps, and limited hearing on his left side. Given the Veteran’s education and work experience, the Board finds that his service-connected disabilities would render him unable to obtain and maintain substantially gainful employment during the period on appeal. Entitlement to TDIU from July 14, 2016 (claim date) is warranted. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s). The Board notes that the Veteran is already in receipt of SMC (S-1) for the period from July 14, 2016 to November 1, 2016. This was provided based on his 100 percent rating for prostate cancer with his additional 60 percent rating as “one disability” for his diabetes and peripheral neuropathies. Beginning November 1, 2016, the Veteran’s prostate cancer rating was lowered to 10 percent disabling and the combination of his disabilities no longer currently meets the requirements for additional SMC benefits from that date onward. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, to include as due to exposure to Agent Orange is remanded. In August 2016, the Veteran was afforded a VA examination related to his hypertension claim. The examination report included the Veteran’s statement that he had developed hypertension in the past year (2015), and had been diabetic since approximately 2006. The examiner provided a negative medical nexus opinion, finding that the Veteran’s hypertension was less likely than not due to his service-connected diabetes mellitus. The rationale included that hypertension was commonly present in individuals with diabetes but was “often the result of diabetic nephropathy.” The opinion additionally noted that there was no identifiable cause for essential hypertension, which tended to develop over many years, but that “secondary [hypertension] tend[ed] to appear suddenly and cause higher blood pressure than does primary hypertension.” The examiner then cited a list of possible causes of primary hypertension. The medical opinion rationale seems to be half-formed. Although the Veteran initially claimed entitlement to service connection for hypertension as secondary to his service-connected diabetes, in a September 2017 letter, the Veteran’s attorney argued entitlement due to exposure to Agent Orange, citing the National Academy of Sciences’ finding that there was “limited or suggestive evidence of an association between exposure to Agent Orange and hypertension.” Additionally, a review of his VA treatment records includes a July 2010 primary care record with the assessment of hypertension “repeat normotensive.” An August 2011 primary care record noted that the Veteran’s hypertension was being treated by a local private physician and he had “meds adjusted same in spite offers to have treated here.” An August 2013 record noted he was being seen for nutritional assessment due to dyslipidemia, gout, diabetes, and hypertension. Thus, unlike what he reported to the 2016 VA examiner, the Veteran’s hypertension began 5 or more years prior. On remand, the Veteran should be asked to provide a release for the private treatment records for his hypertension from 2011, and he should be afforded an additional VA examination. 2. Entitlement to a compensable rating for left ear hearing loss is remanded. In March 2018, the Veteran was afforded a VA audio examination. The RO had already certified the Veteran’s claim for increased left hearing loss rating to the Board in December 2017. As such, the RO did not issue a Supplemental Statement of the Case (SSOC) which addressed this new evidence created by VA. As the RO has not yet reviewed the new evidence, the claim must be remanded for issuance of an SSOC. 3. Entitlement to increased ratings for upper and lower extremity peripheral neuropathies is remanded. Similar to the Veteran’s hearing loss claim, in March and September 2018 the Veteran was afforded VA diabetes and peripheral neuropathy examinations. The current increased rating claims on appeal had been certified to the Board in December 2017. As such, the RO has not reviewed the newly VA-created evidence and issued a SSOC. The claims must be remanded so that the AOJ (Agency of Original Jurisdiction) may review the new evidence and issue a SSOC (or grant the benefits sought). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private physician that treated his hypertension (a September 2011 VA treatment record that he was receiving treatment and medication for his hypertension from a private provider). Make two requests for the authorized records from the private physician, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA hypertension examination. After a review of the record and interview of the Veteran, the examiner should provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s hypertension is due to his military service, to include exposure to Agent Orange? In providing this opinion, note the Veteran’s attorney’s argument that the National Academy of Sciences (Veterans and Agent Orange: Update 2012) found that there was limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s hypertension is due to his service-connected diabetes mellitus? In providing this opinion, the examiner should note that the Veteran was diagnosed with hypertension earlier than the 2015 as reported in the 2016 examination (VA treatment records note hypertension from at least 2010). The examiner must provide a complete rationale for each opinion expressed. (Continued on the next page)   3. After completing the development requested above, readjudicate the Veteran’s claims. The readjudication of the Veteran’s hearing loss and peripheral neuropathy increased rating claims must include review of all evidence added to the claims file since the August 2017 Statement of the Case. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel