Citation Nr: 19166602 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 19-07 612 DATE: August 27, 2019 ORDER An effective date prior to February 16, 2016 for service connection for diabetic peripheral neuropathy of the left lower extremity is denied. An effective date prior to February 16, 2016 for service connection for diabetic peripheral neuropathy of the right lower extremity is denied. REMANDED Entitlement to a rating greater than 20 percent for type II diabetes mellitus is remanded. Entitlement to a rating greater than 10 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating greater than 10 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to a separate compensable rating for erectile dysfunction is remanded. Entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating greater than 10 percent for coronary artery disease is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for kidney condition, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for cancerous tumor of the thyroid, to include as secondary to diabetes mellitus, is remanded. FINDING OF FACT The Veteran’s VA Form 21-526EZ, Fully Developed Claim, seeking service connection for peripheral neuropathy of the left and right lower extremities was received on February 16, 2016; no other formal claim or intent to file form was received prior to February 16, 2016. CONCLUSION OF LAW The criteria for effective dates prior to February 16, 2016 for service connection for diabetic peripheral neuropathy of the left and right lower extremities have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1965 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to effective dates prior to February 16, 2016 for service connection for diabetic peripheral neuropathy of the left and right lower extremities is denied. Except as otherwise provided, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). 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 implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because VA received the Veteran’s claim in February 2016, the amended regulations apply. In this case, VA received the Veteran’s VA Form 21-526EZ, Fully Developed Claim, requesting service connection for diabetic peripheral neuropathy of the bilateral lower extremities on February 16, 2016. The Veteran did not submit an “Intent to File” form or other correspondence indicating his intent to file a claim for service connection for diabetic peripheral neuropathy of the bilateral lower extremities within one year prior to his submission of the VA Form 21-526EZ. The evidence also fails to show that he filed any other formal claim for service connection for diabetic peripheral neuropathy of the bilateral lower extremities prior to February 16, 2016. Accordingly, February 16, 2016 is the date of the claim and as such, is the earliest possible effective date for service connection for diabetic peripheral neuropathy of the left and right lower extremities. As the weight of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. The claims are denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. The claims for increased ratings for type II diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, PTSD, and coronary artery disease are remanded. The Veteran seeks increased ratings for his type II diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, PTSD, and coronary artery disease. The Veteran had VA examinations for each disability in April 2016. In November 2018, the RO ordered additional examinations to assess the current severity of these disabilities. According to a February 2019 Report of General Information, the examinations were scheduled for December 2018, but the Veteran failed to report. Generally, when a veteran fails to report for a VA examination or re-examination that is scheduled in conjunction with a claim for an increased rating, and he fails to provide a good cause for this failure to report, the claim shall be denied. 38 C.F.R. § 3.655(b). Examples of “good cause” for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a). In this case, the evidence does not indicate whether the Veteran was notified that additional examinations would be scheduled, whether he was notified of the examination date(s) and time(s), or whether he was notified of the consequences of his failure to appear for examinations. In August 2019, the Veteran requested that his examinations be rescheduled, and given the foregoing, the Board is giving him the benefit of the doubt that he failed to report for his examinations for good cause. As such, a remand is necessary to schedule examinations for his type II diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, erectile dysfunction, PTSD, and coronary artery disease. 2. The claims for service connection for bilateral hearing loss and tinnitus are remanded. The Veteran seeks service connection for bilateral hearing loss and tinnitus; however, a remand is necessary to obtain addendum opinions addressing the etiology of his disabilities. Specifically, the Veteran had a VA examination in April 2016. However, the examiner was unable to provide opinions addressing the relationships between service and his disabilities without resorting to speculation because the September 1967 separation examination report did not show audiometric test results. In this case, the fact that audiometric testing was not completed at separation from service is not fatal to the Veteran’s claims as service connection can be granted if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disabilities. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. § 3.303(d). As such, opinions based solely on the lack of testing at separation from service are not adequate for rating purposes. On remand, addendum opinions should be obtained that address the relationships, if any, between the Veteran’s service and his bilateral hearing loss and tinnitus. 3. The claims for service connection for hypertension, a kidney condition, and a cancerous tumor of the thyroid, each claimed as secondary to diabetes mellitus, are remanded. The Veteran seeks service connection for hypertension, a kidney condition, and a cancerous tumor of the thyroid, each claimed as secondary to diabetes mellitus. He had VA examinations in April 2016. While the examiner addressed whether the claimed disabilities were caused by diabetes mellitus, the examiner did not address aggravation. The Court of Appeals for Veterans Claims (“Court”) recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). In November 2018, the RO requested opinions addressing whether the Veteran’s diabetes mellitus has aggravated these conditions; however, opinions were not provided. On remand, opinions must be obtained addressing whether the Veteran’s diabetes mellitus has aggravated his hypertension, kidney condition, and/or cancerous tumor of the thyroid. The matters are REMANDED for the following actions: 1. Associate with the claims file updated VA treatment records, if any. 2. Then, schedule the Veteran for examinations with appropriate clinician(s) to determine the current severity of his type II diabetes mellitus, diabetic peripheral neuropathy of the bilateral lower extremities, and erectile dysfunction. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide a full description of the Veteran’s diabetes mellitus, diabetic peripheral neuropathy of the left and right lower extremities, and erectile dysfunction, and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of each disability on occupational functioning and activities of daily living. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. All indicated tests and studies must be completed and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should describe the Veteran’s symptoms and note the functional impairment of the Veteran’s service-connected PTSD and how that impairment impacts employability and daily life. The examiner must comment on the severity of the Veteran’s PTSD and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant DBQ. A complete rationale should be provided for all opinions given, with explanation of the factors upon which each medical opinion is based. 4. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his coronary artery disease. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide a full description of the Veteran’s coronary artery disease and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should provide, to the greatest extent possible, comprehensive information that addresses all components of the applicable rating criteria, to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; any evidence of congestive heart failure; and any associated symptoms including dyspnea, fatigue, angina, dizziness, or syncope, and its frequency. To the extent possible, the examiner should identify any symptoms and functional impairments due to his coronary artery disease alone and discuss the effect of the Veteran’s coronary artery disease on any occupational functioning and activities of daily living. 5. Request addendum opinions from the April 2016 audiologist or another qualified clinician addressing the Veteran’s bilateral hearing loss and tinnitus. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide opinions indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus are associated with his military service, to include any in-service noise exposure. The examiner must provide separate opinions for each disability and support each opinion with rationale. The examiner should be notified that the Veteran is competent to report his exposure to noise during service. Further, the opinion cannot be based solely on the lack of an audiology examination at separation from service. If any opinion cannot be provided without resorting to speculation, then the examiner must explain why this is so. If the requested opinions cannot be provided without examining the Veteran, then an appropriate examination must be scheduled. 6. Request addendum opinions from the April 2016 examiner or other appropriate clinicians addressing the relationship between the Veteran’s service-connected diabetes mellitus and his hypertension, kidney condition, and cancerous tumor of the thyroid. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. After reviewing the evidence, the examiner must provide opinions indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected diabetes mellitus has aggravated (worsened) his (a) hypertension, (b) kidney condition, and (c) cancerous tumor of the thyroid. An opinion must be provided for each claimed disability and each opinion must be supported by rationale. If any opinion cannot be provided without resorting to speculation, then the examiner must explain why this is so. If any opinion cannot be provided without examining the Veteran, then examinations must be scheduled. 7. Notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. G. Alderman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.