Citation Nr: 1808828 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-09 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy. 2. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy. 3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy. 4. Entitlement to service connection for hypertension. 5. Entitlement to an effective date prior to December 19, 2010 for the award of service connection for arteriosclerotic heart disease. 6. Entitlement to an effective date prior to May 1, 2013 for the award of a 60 percent rating for the service-connected arteriosclerotic heart disease. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 6, 2012. REPRESENTATION Appellant represented by: James A. Wardell, Esquire ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to July 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of several Department of Veterans Affairs (VA) Regional Offices (RO). Jurisdiction currently resides with the VA RO in St. Petersburg, Florida. In May 2012, the RO, in pertinent part, granted service connection for heart disease and assigned a 30 percent rating, effective January 18, 2011. The RO also granted service connection for peripheral neuropathy of the right and left lower extremities and assigned 10 percent ratings, effective January 18, 2012. Finally, the RO denied entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and hypertension. The Veteran disagreed with and appealed each of these issues except for the heart disease award. In February 2014, the RO denied entitlement to an earlier effective date for the award of service connection for heart disease. In June 2014, the RO increased the rating for service-connected heart disease from 30 percent to 60 percent, effective May 1, 2013. The Veteran's most recent power-of-attorney was executed in favor of James Wardell, Esquire, which effectively revoked all prior representations. In September 2017, the RO awarded a TDIU, effective August 6, 2012. The issue of entitlement to a TDIU prior to August 6, 2012 has been raised by the record in the June 2014 VA examination report and has been added to the appeal as it is part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU , whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). The issues of service connection for hypertension, and an earlier effective date for the award of a 60 percent rating for heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 24, 2014, the Veteran's right lower extremity peripheral neuropathy was characterized by mild incomplete paralysis of the external popliteal nerve, and did not manifest in moderate or severe incomplete paralysis or complete paralysis. 2. From June 24, 2014, the Veteran's right lower extremity peripheral neuropathy was characterized by moderate incomplete paralysis of the external popliteal nerve, and did not manifest in severe incomplete paralysis or complete paralysis. 3. Prior to June 24, 2014, the Veteran's left lower extremity peripheral neuropathy was characterized by mild incomplete paralysis of the external popliteal nerve, and did not manifest in moderate or severe incomplete paralysis or complete paralysis. 4. From June 24, 2014, the Veteran's left lower extremity peripheral neuropathy was characterized by moderate incomplete paralysis of the external popliteal nerve, and did not manifest in severe incomplete paralysis or complete paralysis. 5. The Veteran's peripheral neuropathy of the bilateral upper extremities is etiologically related to his service-connected diabetes. 6. The Veteran served in the Republic of Vietnam. 7. Arteriosclerotic heart disease (ischemic heart disease) was initially diagnosed in March 1999. 8. On December 19, 2011, the Veteran filed an original informal claim for service connection for heart disease. Prior to December 19, 2011, there is no evidence of a claim (formal or informal) of service connection for heart disease or any associated disability. 9. From June 2, 2012, the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 24, 2014, the criteria for an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.124, 4.124a, Diagnostic Code (DC) 8721 (2017). 2. From June 24, 2014, the criteria for a rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.124, 4.124a, DC 8721 (2017). 3. Prior to June 24, 2014, the criteria for an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.124, 4.124a, DC 8721 (2017). 4. From June 24, 2014, the criteria for a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.124, 4.124a, DC 8721 (2017). 5. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities, secondary to service-connected diabetes mellitus, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. The criteria for effective date prior to December 19, 2010 for the award of service connection for arteriosclerotic heart disease are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 3.816 (2017). 7. From June 2, 2012, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties In this case, the Veteran has not 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). Increased Initial Ratings - Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Initial Rating Claim for Bilateral Lower Extremity Peripheral Neuropathy - Analysis The Veteran is currently in receipt of a 10 percent initial rating for peripheral neuropathy of both the right and left lower extremities. He contends that a higher rating is warranted. The Veteran's neurologic impairment of the left and right lower extremities is rated under DC 8721, which provides ratings for neuralgia of the external popliteal nerve. Neuralgia is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis of the external popliteal nerve. See 38 C.F.R. §§ 4.124 and 4.124a, DC 8521. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Under DC 8521, mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, involving foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The rating schedule does not define the terms 'mild," "moderate," or "severe," as used in this diagnostic code to describe the degree of incomplete paralysis of the foot. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term 'incomplete paralysis' 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. 38 C.F.R. § 4.124a. Turning to the evidence, an October 2011 private treatment note indicated that the Veteran had progressive weakness and discomfort in both legs, the right slightly worse than the left. He had noted diminishing ability to walk any distances. The Veteran was limited to walking 100 or so yards before having to sit down. In November 2011, the Veteran's treating neurologist stated that the Veteran complained of bilateral leg pain and weakness when walking. Motor examination showed full strength throughout, with perhaps some mild weakness of hip flexion bilaterally. Sensory examination revealed diminished pinprick and vibratory sense distally in both feet. Gait was normal, although the Veteran had trouble walking on his heels. A November 2011 VA treatment note indicated that the Veteran had peripheral neuropathy related to diabetes mellitus and/or alcohol. Symptoms of lower extremity tingling/numbness, gait disturbance, and aching and weakness in the legs were noted. The Veteran was afforded a VA examination in February 2012. He stated that he had difficulty climbing stairs. He stated that his feet were numb and he had cramps in the calf. The Veteran reported that he had mild weakness of the legs at times and would lose his balance. He had mild intermittent pain and numbness of the bilateral lower extremities. Bilateral ankle reflexes were decreased, as was sensation in the bilateral foot/toes. Vibration sensation was also decreased bilaterally. The VA examiner opined that the Veteran had mild incomplete paralysis in the bilateral lower extremities. The Veteran was afforded a VA examination in June 2014. The VA examiner stated that the Veteran had a history of diabetes with diabetic neuropathy involving the lower extremities. The Veteran had an EMG done in September 2013 that showed polyneuropathy involving the bilateral lower extremities. The Veteran had moderate paresthesias and/or dysesthesias and severe numbness of the bilateral lower extremities. Strength was normal bilaterally, as were deep tendon reflexes. Light touch/monofilament testing was absent in the ankles/lower legs and feet/toes. The Veteran had shiny, smooth, and hairless skin from the knees down. The VA examiner opined that the Veteran had mild incomplete paralysis of the external popliteal nerves of the bilateral lower extremities. The Veteran reported that he was unable to climb stairs due to his neuropathy. After a review of the evidence, lay and medical, the Board finds that an initial rating in excess of 10 percent for bilateral lower extremity peripheral neuropathy is not warranted prior to June 24, 2014. Prior to June 24, 2014, the Veteran's symptoms of bilateral lower extremity weakness, tingling/numbness, pain, and decreased sensation were wholly sensory and mild in severity. While he had difficulty walking, the October 2011 private treatment note indicated that the Veteran was able to walk 100 or so yards before having to sit down. For these reasons, the Board finds that the evidence more nearly approximates a finding that the Veteran's bilateral lower extremity peripheral neuropathy manifested in mild incomplete paralysis prior to June 24, 2014. However, from June 24, 2014, the Veteran's bilateral lower extremity peripheral neuropathy manifested in moderate incomplete paralysis. The June 2014 VA examination reflects a worsening of the Veteran's bilateral lower extremity peripheral neuropathy, with moderate paresthesias and/or dysesthesias and severe numbness. Sensation was absent in the Veteran's lower legs and feet. Trophic changes were also noted. Although this evidence indicates the Veteran had severe numbness, the Board concludes that the evidence as a whole more nearly approximates a disability picture manifested by moderate incomplete paralysis, rather than severe incomplete paralysis. For these reasons, and resolving all reasonable doubt in the Veteran's favor, a rating of 20 percent, but no higher, for bilateral lower extremity peripheral neuropathy is warranted from June 24, 2014. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Claim for Peripheral Neuropathy of the Bilateral Upper Extremities - Analysis The Veteran is seeking service connection for peripheral neuropathy of the bilateral upper extremities, including as secondary to his service-connected diabetes mellitus. The Veteran has been in receipt of service connection for diabetes since January 18, 2012. As an initial matter, the Board finds that the Veteran has a current diagnosis of bilateral upper extremity peripheral neuropathy. See June 2014 VA examination report. On the question of etiology, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current peripheral neuropathy of the bilateral upper extremities is related to his service-connected diabetes. The June 2014 VA examiner opined that the Veteran had clinical and diagnostic test evidence of diabetic neuropathy in both upper extremities. He stated that the Veteran's median nerves of the bilateral upper extremities were involved. This opinion is highly probative as it was based on a thorough review of the Veteran's medical history, his lay statements, and clinical and diagnostic test evidence of record. The Board notes that this is the only competent nexus opinion of record. As explained above, the Veteran's current peripheral neuropathy of the bilateral upper extremities meets all of the elements for service connection, as there is a current diagnosis of peripheral neuropathy of the bilateral upper extremities, and competent nexus between the current diagnosis and the service-connected diabetes. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for secondary service connection for peripheral neuropathy of the bilateral upper extremities have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities, secondary to the service-connected diabetes mellitus, is granted. Earlier Effective Date Claim for Award of Service Connection for Heart Disease The Veteran seeks an earlier effective date for the award of service connection for heart disease. He is currently in receipt of an effective date of December 19, 2010. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). The term "claim" or "application" means 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). 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. In this case, however, the applicable regulations are those prior to the revision, as this claim was pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. A formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Here, the basic facts are not in dispute. In December 2011, the Veteran filed an informal claim of entitlement to service connection for heart disease. This was followed by a formal claim for service connection for heart disease on January 18, 2012. In May 2012, the RO awarded service connection for heart disease, effective January 18, 2011, one year prior to receipt of the Veteran's formal claim for service connection. In February 2014, pursuant to an order of the U.S. District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991), the RO, of its own accord, undertook a special review of the file to determine whether retroactive benefits were warranted based on the addition, effective August 2010, of ischemic heart disease, applicable here, to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309(e) (2017). The February 2014 rating decision denied entitlement to an effective date prior to January 18, 2011 for the award of service connection for heart disease. In March 2014, the Veteran appealed this decision. In November 2016, during the pendency of this appeal, the RO awarded an effective date of December 19, 2010 for the award of service connection for heart disease, one year prior to receipt of the Veteran's informal claim for service connection. The record indicates that the Veteran was diagnosed with heart disease in March 1999. See March 1999 private treatment record. Thus, March 1999 is the date entitlement arose. However, the United Stated Court of Appeals for the Federal Circuit (Federal Circuit) found that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). See also Brannon, 12 Vet. App. at 35 (holding that "the mere presence of medical evidence does not establish an intent on the part of the Veteran to seek secondary service connection for the psychiatric condition"); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Rather, the Federal Circuit found that "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." MacPhee, 459 F.3d at 1327; see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Accordingly, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, any medical records of the Veteran's treatment for heart disease prior to December 19, 2011, cannot, by themselves, constitute a claim for service connection. The record does not contain any communication filed prior to December 19, 2011, that could be construed as a formal or informal claim of service connection for heart disease or associated disability. Significantly, the December 19, 2011 informal claim was the initial document placed in the Veteran's claims folder. For these reasons, the Board finds that December 19, 2011, is the date of the original claim. As indicated, VA conducted a special Nehmer review of this case to determine whether retroactive benefits were warranted based on the addition, effective August 31, 2010, of ischemic heart disease to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309(e) (2017). Where VA compensation benefits are awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a). In no event shall the increase be retroactive for more than one year from the date of application for the increase or the date of administrative determination, whichever is earlier. 38 U.S.C. § 5110(g). If a claim is reviewed by VA on its own initiative or at the request of the veteran within one year from the effective date of the liberalizing law, then benefits may be authorized from the effective date of the law. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed by VA on its own initiative more than one year after the effective date of the law, then benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the claimant's request more than a year after the effective date of the law, benefits may be authorized for one year prior to the date of receipt of the request. 38 C.F.R. § 3.114(a)(3). Special rules for the assignment of effective dates for the award of presumptive service connection based on herbicide agent exposure have been promulgated pursuant to the holdings in the class-action case of Nehmer v. U.S. Dep't of Veterans Affairs, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); and, Nehmer v. Veterans Admin. of the Gov't of the U.S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer "class member" is a Vietnam veteran who has a "covered herbicide disease." A covered herbicide disease is a disease for which the Secretary of VA established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in § 3.309(e). 38 C.F.R. § 3.816(b)(2). Ischemic heart disease, to include arteriosclerotic heart disease, was added to the list of presumptive disabilities on August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). If the "class member" and "covered herbicide disease" requirements are met and the class member had a claim for the covered herbicide disease that was denied between September 25, 1985, and May 3, 1989, or received by VA between May 3, 1989, and the date of the change in regulation allowing for a presumption of the covered disease, then the effective date will be the later of (1) the date of receipt of the claim giving rise to the original denial; or (2) the date the disability arose. 38 C.F.R. § 3.816(c)(1), (2). There are two exceptions to this rule: (1) if the class member's claim was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service and (2) if there was no prior claim (either previously denied or currently pending), then the effective date of the award shall be determined in accordance with the general effective date regulations under §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(3), (4). The Veteran is a "Nehmer class member" as he served in the Republic of Vietnam and has a covered herbicide disease. 38 C.F.R. § 3.816. His initial claim for service connection for heart disease was received many years after service separation and more than a year after the date of the change in regulation allowing for a presumption of service connection for ischemic heart disease secondary to herbicide exposure. Therefore, the effective date of his claim is based on the provisions of §§ 3.114 or 3.400. As noted above, the date of the claim is December 19, 2011, and the Veteran's heart disease arose as early as March 1999, as evidenced by the March 1999 private treatment record. Therefore, the record shows that he had arteriosclerotic heart disease and met the criteria for the presumption from March 1999 continuously until the time the liberalizing law was implemented. However, the Veteran did not file his claim for benefits until more than one year after the liberalizing law became effective. Therefore, pursuant to § 3.114(a)(3), he is entitled to an effective date no more than one year prior to the date of his claim, and the proper effective date for the award of service connection for heart disease is the currently assigned effective date of December 19, 2010. 38 C.F.R. § 3.114. There is nothing in the record received prior to December 19, 2011 that may be construed as expressing a claim seeking service connection for arteriosclerotic heart disease. As no earlier claim seeking service connection was filed, there is no provision in the law or regulations authorizing an award of service connection for arteriosclerotic heart disease prior to December 19, 2010. 38 C.F.R. §§ 3.114, 3.400. Therefore, an effective date prior to December 19, 2010 is not warranted and the claim must be denied. Entitlement to a TDIU prior to August 6, 2012 It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. The Veteran in this case met the percentage requirements as of February 1, 2012. He is in receipt of service connection for posttraumatic stress disorder (rated 70 percent from August 6, 2012); heart disease (rated 30 percent from December 19, 2010 and 60 percent from May 1, 2013); peripheral vascular disease of the right lower extremity (rated 40 percent from February 1, 2012); peripheral vascular disease of the left lower extremity (rated 40 percent from February 1, 2012); diabetes mellitus (rated 20 percent from January 18, 2012); left lower extremity peripheral neuropathy (rated 10 percent from January 18, 2012 and 20 percent from June 24, 2014); and right lower extremity peripheral neuropathy (rated 10 percent from January 18, 2012 and 20 percent from June 24, 2014). The remaining question is whether these service-connected disabilities precluded the Veteran from securing and following a substantially gainful occupation prior to August 6, 2012. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Turning to the evidence, on the February 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked full-time in June 2012. The Veteran stated that his service-connected heart disease and diabetes prevented him from obtaining and maintaining substantially gainful employment. The Veteran reported having a bachelor's degree. In April 2015, the Veteran's treating cardiologist stated that the Veteran was unable to be employed due to his heart disease and peripheral vascular disease. The cardiologist described the Veteran as "completely disabled" from these disabilities. In June 2015, the Veteran submitted a private vocational evaluation that was completed the previous month. The evaluator stated that the Veteran had stopped working in June 2012. He had worked in real estate sales, which involved a great deal of standing and walking. The evaluator stated that the Veteran was unable to walk for more than a block, used a cane, could only sit for a half hour, and had to have his feet elevated when sitting. The Veteran also had a history of falling due to dizziness related to his service-connected peripheral vascular disease. Climbing stairs was extremely difficult and he had to stop every other stair or so to rest. In light of these disabilities and related functional impairments, the evaluator opined that it was at least as likely as not that the Veteran had been unable to secure or follow a gainful occupation as a result of his service-connected disabilities since June 2012. On the April 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked on June 1, 2012. He stated that his service-connected heart disease and peripheral vascular disease prevented him from obtaining and maintaining substantially gainful employment. After review of all evidence of record, both lay and medical, the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities since June 2, 2012, the day after he last worked. The Veteran's symptoms related to his service-connected peripheral neuropathy, peripheral vascular disease, and peripheral neuropathy severely limited his ability to walk any significant distance, climb stairs, and sit for extended periods. The Veteran's limitations related to walking, climbing, sitting, and standing, as well as his need for frequent breaks, precluded him from obtaining and maintaining any type of substantially gainful employment. In support of this finding, the Board finds the opinions from the Veteran's treating cardiologist and private vocational evaluator to be highly probative. Given the significant impact of the service-connected disabilities on the Veteran's ability to work and perform routine tasks that would likely be required for employment, the evidence is at least in equipoise as to whether his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment from June 2, 2012. Therefore, entitlement to a TDIU is warranted from an earlier effective date of June 2, 2012, the day after the Veteran's last day of substantially gainful employment. ORDER An initial rating in excess of 10 percent for right lower extremity peripheral neuropathy prior to June 24, 2014 is denied. From June 24, 2014, a rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy is granted, subject to the laws and regulations governing payment of monetary benefits. An initial rating in excess of 10 percent for left lower extremity peripheral neuropathy prior to June 24, 2014 is denied. From June 24, 2014, a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy is granted, subject to the laws and regulations governing payment of monetary benefits. Service connection for peripheral neuropathy of the bilateral upper extremities, secondary to the service-connected diabetes mellitus, is granted. An effective date prior to December 19, 2010 for the award of service connection for heart disease is denied. From June 2, 2012, a TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. I. Hypertension The record shows that the Veteran served in the Republic of Vietnam during the Vietnam War; therefore exposure to herbicide agents in service is presumed. However, current VA regulations do not provide hypertension as a presumptive disability associated with herbicide agent exposure. Moreover, the National Academy of Sciences (NAS), in recent Agent Orange updates, including the most recent Update 2014, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide agent exposure. See VETERANS AND AGENT ORANGE: UPDATE 2014, at 8; see also 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (Dec. 27, 2010). As there is evidence indicating that there may be an association between hypertension and herbicide agent exposure, a VA opinion regarding this alternative theory must be obtained. In addition, the Board notes that the Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) and has been receiving mental health treatment since shortly after service. See November 2016 VA PTSD examination report. Therefore, the Board finds that a medical opinion is necessary to help resolve the issue of whether the Veteran's hypertension is proximately due to, or aggravated by, his service-connected PTSD. II. Earlier Effective Date for 60 Percent Rating for Heart Disease In March 2014, the Veteran's representative submitted a notice of disagreement as to the effective date assigned to the award of a 60 percent rating for heart disease in the June 2014 rating decision. To date, a statement of the case (SOC) has not been issued as it relates to this issue. The Board is required to remand the claim for issuance of a SOC. Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal of the issue after the SOC is issued. Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC on the issue of entitlement to an effective date prior to May 1, 2013 for the award of a 60 percent rating for heart disease. The Veteran and his representative should be advised of the time limit for perfecting an appeal, and afforded such period of time to do so. If he timely perfects an appeal in the matter, it should be returned to the Board. 2. Obtain and associate with the claims file any updated VA treatment records from September 2017 to the present. 3. Obtain a medical opinion as to the etiology of the Veteran's hypertension. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must respond to the following: a. Provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is due to his period of active service, specifically to include his conceded in-service herbicide agent exposure. In providing the above opinion, the examiner should consider recent NAS Agent Orange updates which have concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. b. Provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension was caused by, or alternatively aggravated by (i.e., any worsening of hypertension beyond its natural progression), his service-connected disabilities, to include diabetes, arteriosclerotic heart disease, and PTSD. The examiner should note the Veteran's reports in the November 2016 VA PTSD examination of receiving psychiatric treatment starting in 1973 and a history of self-medicating with alcohol and marijuana. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. When the development requested in items 2 and 3 has been completed, and compliance with the requested actions has been ensured, again review the claim seeking service connection for hypertension on the basis of any additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs