Citation Nr: A20017841 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 190626-12906 DATE: December 2, 2020 ORDER The application to readjudicate a previously denied claim for service connection for hypertension is granted. Service connection for hypertension is granted. Evaluation of 10 percent for meralgia paresthetica of the right thigh, previously rated as residuals of right thigh strain, is restored. Entitlement to a rating in excess of 10 percent for meralgia paresthetica of the right thigh, previously rated as residuals of right thigh strain, is denied. REMANDED Service connection for left hip gout is remanded. Service connection for right ankle gout is remanded. Service connection for left elbow gout is remanded. Service connection for left ankle gout is remanded. Service connection for left toe/foot gout is remanded. Service connection for left knee gout is remanded. Service connection for right knee gout, to include as secondary to service-connected right knee strain, is remanded. Service connection for asthma, to include as secondary to service-connected chronic sinusitis, is remanded. Service connection for Meniere’s disease is remanded. Service connection for vertigo (also claimed as loss of balance and dizziness) is remanded. Entitlement to individual unemployability is remanded. FINDINGS OF FACT 1. In a June 1997 rating decision, the Veteran’s claim for service connection for hypertension was denied. 2. No notice of disagreement (NOD) was filed and no further evidence was added to the claims file for one year after the June 1997 rating decision was mailed. 3. New evidence was received after the final June 1997 rating decision that is relevant to the issue of entitlement to service connection for hypertension. 4. Resolving reasonable doubt in the Veteran’s favor, his hypertension began during active service. 5. The Veteran’s meralgia paresthetica of the right thigh is rated as 10 percent disabling, which is the maximum schedular rating permitted for paralysis of the external cutaneous nerve of the thigh. CONCLUSIONS OF LAW 1. The June 1997 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and relevant evidence has been received to readjudicate the Veteran’s claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d). 3. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. For the entire period on appeal, the criteria for restoration of a 10 percent rating for meralgia paresthetica of the right thigh, previously rated as residuals of right thigh strain, have been met. 38 U.S.C. § 1155, 1159; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.13, 4.71a, Diagnostic Code 5252, 4.124a, Diagnostic Codes 8529. 5. The criteria for a disability rating in excess of 10 percent for meralgia paresthetica of the right thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5252, 4.124a, Diagnostic Code 8529. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from February 1971 to April 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of December 2018 and April 2019 by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in the Board’s Direct Review lane docket in the modernized appeals system. The Board has only considered the evidence of record at the time of the December 2018 and April 2019 rating decisions. 1. The application to reopen a previously denied claim for service connection for hypertension A rating decision of June 1997 denied service connection for hypertension. As no NOD was filed and no evidence submitted within one year after the June 1997 rating decision was mailed, the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). Since June 1997 the Veteran had submitted decades worth of medical records which show a current diagnosis for hypertension and ongoing treatment with medication. These Board finds that these records are new, as they did not even exist at the time of the June 1997 decision, and they are relevant because they tend to prove that the Veteran has a current diagnosis of hypertension. The Veteran’s application to readjudicate his claim for service connection for hypertension is therefore granted. The claim of service connection for hypertension is addressed in the following section. 2. Service connection for hypertension The Veteran contends that his currently diagnosed hypertension began during active service. The Board concludes that the Veteran has a current disability of hypertension that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In its December 2018 rating decision, the RO made a finding that the Veteran has a current diagnosis of hypertension, first diagnosed in October 1995. This is a favorable finding by the RO which is binding on the Board. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The question before the Board is whether the Veteran’s hypertension began during active service or is otherwise related to an in-service injury, event, or disease. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension must be confirmed by readings taken two or more times on at least three different days. Id. A service treatment record (STR) from February 1991 shows a blood pressure reading of 142/96 followed by “?HTN?” and a note to conduct serial blood pressure readings if the Veteran’s blood pressure was still elevated in the morning. A March 1991 STR shows a blood pressure reading of 144/100. An April 1991 STR shows a blood pressure reading of 138/98. At his January 1993 retirement examination, the Veteran’s blood pressure was 132/94. The evidence against the claim includes the fact that the Veteran was not formally diagnosed with hypertension during service and he had blood pressure readings after April 1991 that showed his diastolic blood pressure lower than 90 mm. The evidence in favor of the claim includes the above noted serial blood pressure readings in February, March, and April of 1991, each showing diastolic blood pressure greater than 90mm and the Veteran’s elevated diastolic blood pressure on his January 1993 retirement examination. The Board finds that the Veteran’s formal diagnosis within two years of separation from service is also an indication that the condition developed during service and he had continuity of elevated blood pressure since service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hypertension arose during service and continued to his diagnosis two years after his retirement. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Evaluation of meralgia paresthetica of the right thigh The Veteran is seeking restoration of a 10 percent rating for a right thigh disability as well as a rating in excess of 10 percent for that right thigh disability. Severance As an initial matter, the Board notes that during the period on appeal the AOJ changed the Diagnostic Code under which the Veteran’s right thigh disability is rated. By way of background, the Veteran has been service-connected for a right thigh disability since May 1993. A February 1994 rating decision originally granted service connection for residuals of right thigh strain, rated by analogy under Diagnostic Code 5299 – 5252 for limitation of flexion of the thigh. From May 1993 through August 20, 2013 it was rated 0 percent disabling. In August 2013, the Veteran filed a claim for an increased disability rating. A March 2014 rating decision granted an increase to 10 percent under 38 C.F.R. § 4.59 for functional loss due to painful movement which did not otherwise meet the criteria for a compensable rating, effective August 21, 2013. In November 2016, the Veteran filed a claim for an increased disability rating. In a May 2017 rating decision, the RO recharacterized the Veteran’s right thigh disability as meralgia paresthetica of the right external cutaneous nerve and reduced the disability rating from 10 percent to 0 percent under Diagnostic Code 8529, effective March 24, 2017. In light of the change in Diagnostic Code during the pendency of the appeal, the Board has considered the Court of Appeals for Veterans Claims’ (Court) and the United States Court of Appeals for the Federal Circuit’s (Federal Circuit) holdings in Murray v. Shinseki, 24 Vet. App. 420 (2011), and Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011), respectively. In this regard, in June 2011, both the Court, in Murray, and Federal Circuit, in Read, considered the issue of whether severance of a particular diagnostic code was indeed severance of a service-connected disability. In Murray, the Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). Additionally, the Court held that the change of Diagnostic Codes under which a veteran’s disability was rated was error where the change effectively reduced to 0 percent a disability rating which had been in effect for more than 20 years, and thus protected by regulation. Id. However, days after the Murray decision, the Federal Circuit addressed a similar issue in Read. In Read, a veteran had been service-connected for residuals of a gunshot wound and a compensable rating had been assigned regarding a particular muscle group. Over 10 years after the initial assignment of the rating, a VA examiner determined that, in fact, a different muscle group had been affected by the gunshot wound and not the muscle group to which the initial diagnostic code applied. Notably, when the disability was initially granted service connection, no diagnosis of a particular muscle group had been identified. Following the VA examiner’s report, the Diagnostic Code was changed to reflect the affected muscle group. The Veteran appealed and the Board denied the appeal, finding that the Diagnostic Codes contained the same criteria and that, because the disability still enjoyed the same rating, there had been no harm in changing the Diagnostic Code. The Court affirmed the Board’s decision and the Veteran appealed to the Federal Circuit. The Federal Circuit identified the issue on appeal as whether service connection for a disability protected under 38 U.S.C. § 1159 is severed when VA assigns to an injury a different Diagnostic Code than originally noted. In reaching its conclusion that the protected disability is not severed, the Federal Circuit considered the rationale behind 38 U.S.C. § 1159, as well as other relevant statutory definitions, and determined that 38 U.S.C. § 1159 only protects service connection of the disability, not the specific Diagnostic Code. Upon review of the definition of service connection under 38 U.S.C. § 101(16), the Federal Circuit determined that “to sever service connection is to conclude that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise.” Id. The Federal Circuit noted that § 1159 “does not protect the fact of a disability, and therefore, the change in the determination of the applicable Diagnostic Code likewise is unprotected.” Id. Specifically regarding the facts in Read, the Federal Circuit agreed with the government’s argument that, because the same disability was involved in both the initial disability determination and the later specific identification of the particular muscle group that was affected, the change in the Diagnostic Code did not sever anything. The same disability was still service connected even though the Diagnostic Code may have changed. Id. Moreover, the Federal Circuit found that the purpose of 38 U.S.C. § 1159 was to “protect Veterans with long-standing determinations of service connection from suddenly having the determination of service connection stripped.” Id. The Federal Circuit noted that “there is nothing in the legislative history that manifests any concern about the situs of the disability or the Diagnostic Code associated with it, and expanding the protection of § 1159 to such situs determinations or Diagnostic Codes does nothing to advance Congress’ intention.” Id., citing VAOPGCPREC 50-91 (Mar. 29, 1991) (precedential opinion of the VA General Counsel) (noting that it would be “beyond the legislative purpose” to allow a Veteran to be service connected for two disabilities because of the protection of the statute where only one is shown by the medical evidence). Further, the Federal Circuit noted that VA had not changed its determination that the Veteran’s gunshot wound was incurred in connection with his military service, or that he was entitled to compensation for the disability he incurred as a result. Thus, the Federal Circuit found that “to determine that the change of the situs of the disability - or the Diagnostic Code associated with it - was a severance of one service-connected disability and an establishment of another, where the cause of the disability and the resultant functional impairment are the same, would ill-serve the purpose of the statute.” The Federal Circuit also noted that the issue of reassignment of a diagnostic code was not a novel concept. Referencing Gifford v. Brown, 6 Vet. App. 269 (1994), the Court was noted to have held that the correction of the situs of the injury was not a violation of § 1159 because the Veteran remained service-connected for the disability at issue. Thus, based on the foregoing, the Federal Circuit held that service connection for a “disability” is not severed simply because the situs of a disability - or the Diagnostic Code associated with it - is corrected to more accurately determine the benefit to which a Veteran may be entitled for a service-connected disability. The Board recognizes a distinction between Murray and Read in that, in Murray, the diagnostic codes for arthritis and limitation of motion do not evaluate the same symptoms as the Diagnostic Code for instability. See VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997) and VAOGCPREC 9-98 (August 14, 1998). Whereas in situations such as Read, the differing Diagnostic Codes regarding muscle groups do consider the same symptoms. However, to narrowly construe Read as only applying to muscle groups or similar Diagnostic Code groupings that only consider exactly the same symptoms would fall short of the holding in Read. Again, in Read, the Federal Circuit considered the broader picture of § 1159 and carefully examined exactly what is protected - service connection for the disability, not the specific Diagnostic Code. Upon careful consideration, the Federal Circuit determined that the specific Diagnostic Code was not protected even though service connection for the disability was protected. In the present case, the Board finds that the Veteran’s service connection for residuals of right thigh strain was established effective May 1993 and was in place for more than 10 years, making it protected under 38 U.S.C. § 1159. His compensable rating of 10 percent under Diagnostic Code 5299 – 5252 was in effect for less than 5 years when the May 2017 rating decision changed the Diagnostic Code and disability rating and it is therefore not protected by 38 U.S.C. § 110 and 38 C.F.R. § 3.951(b). The February 1994 rating decision that originally granted service connection noted complaints of pain and numbness in the right thigh and clicking in the right knee but no instability or decrease in range of motion. The March 2014 rating decision which increased the Veteran’s disability rating to 10 percent did so based on 38 C.F.R. § 4.59, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating (10 percent) for a particular joint. The rating was based on the same pain that had originally justified the grant of service connection, not based on any qualifying limitation of motion. In December 2016 VA provided an examination to address the Veteran’s claims for bilateral peripheral neuropathy of the lower extremities and an increased rating for residuals of right thigh strain. The examiner noted the Veteran’s July 1984 diagnosis of meralgia paresthetica based on symptoms of numbness and tingling in the bilateral thighs, with similar symptoms continuing to the present, and opined that the proper diagnosis for the Veteran’s right thigh condition was meralgia paresthetica, a continuation of the same condition he had been diagnosed with in service, and that this was the same condition which had been previously rated as residuals of right thigh strain. Here, as in Read, the same disability is involved in both the February 1994 rating decision that initially established service connection and the May 2017 rating decision. The Board has not concluded that the Veteran’s right thigh disability, previously determined to have been incurred in the line of duty, was incurred otherwise. Based on the holding in Read, the Board finds that the change in the Diagnostic Code here does not result in a severance. Reduction A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The Court has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The provisions of 38 C.F.R. § 3.344 provide criteria and considerations for determining whether a reduction in a rating is warranted. See 38 C.F.R. § 3.344. In this regard, 38 C.F.R. § 3.344(a) notes that rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). 38 C.F.R. § 3.344(d). The Court has further held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown at 421. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Finally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In advance of written notice concerning proposed actions under section (e), the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. See 38 C.F.R. § 3.105(i). In the present case, at the time of the May 2017 rating decision which reduced the Veteran’s rating for his right thigh disability to 0 percent, his 10 percent had been in effect for less than the required 5 years to be considered “stabilized.” Therefore, the requirements of 38 C.F.R. § 3.344(a) do not apply to this case. 38 C.F.R. § 3.344(d). Furthermore, the reduction from 10 percent to 0 percent for the Veteran’s right thigh disability did not reduce his combined disability rating of 80 percent and did not result in a reduction or discontinuance of compensation payments. The notice and hearing requirements of § 3.105(e) and § 3.105(i) therefore do not apply. However, the generally applicable requirements noted in Brown and Faust, that any rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations” and that “not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work” do apply in the present case and the Agency of Original Jurisdiction (AOJ) failed to comply with them. The AOJ simply accepted the December 2016 VA examiner’s explanation of the change in diagnosis, made no inquiry into whether or not the Veteran’s symptoms had improved, worsened, or changed in any way, and assigned a lower rating based on criteria for the adjusted diagnosis. The Board therefore finds that the reduction from a 10 percent rating to a 0 percent rating for the Veteran’s right thigh disability, rated first as residuals of right thigh strain and then as meralgia paresthetica of the right thigh, did not comply with the requirements of 38 C.F.R. §§ 4.1, 4.2, 4.13 and is therefore void ab initio. The Veteran’s 10 percent rating is therefore restored from August 21, 2013. Increased Rating The Veteran contends that he is entitled to a higher rating because his current 10 percent rating does not reflect the severity of his right thigh disability. The Veteran’s right thigh disability is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5252, for limitation of flexion of the thigh, before March 24, 2017. Beginning March 24, 2017, the Veteran’s right thigh disability is rated as meralgia paresthetica, incomplete paralysis of the external cutaneous nerve of the thigh. Before March 24, 2017 Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right thigh disability before March 24, 2017. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had numbness, tingling, and pain in his right thigh would not result in symptoms more nearly approximating flexion limited to 30 degrees. The Veteran has not stated, and his medical records do not show that his symptoms caused limitation in flexion to even 45 degrees, much less 30 degrees. The Veteran’s original 10 percent rating was granted based on evidence of painful movement under 38 C.F.R. § 4.59. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for his right thigh disability, rated as residuals of right thigh strain, before March 24, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Beginning March 24, 2017 Paralysis of the external cutaneous nerve of the thigh is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8529. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8629 and 8729. Under these criteria, mild to moderate paralysis is rated as noncompensable. Moderate to complete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8529. A 10 percent rating is the highest rating available under the schedule. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). VA provided an examination in December 2016 using the standardized Disability Benefits Questionnaire (DBQ) for peripheral nerve condition. The examiner noted the Veteran’s complaints of numbness, tingling, and pain in his lower extremities. On examination the examiner noted mild paresthesias and/or dysesthesias and numbness. Muscle strength and deep tendon reflexes were normal and there was no muscle atrophy or trophic changes. Sensation to light touch was reduced on the upper anterior thigh. The Veteran’s gait was normal, and he did not report using any assistive devices because of this condition. The medical evidence of record does not show, and the Veteran has not claimed, symptoms including impairment of motor functions, trophic changes, loss of reflexes, or muscle atrophy. Regarding sensory disturbance, the Veteran’s complaints of numbness and tingling are consistent with the findings of the December 2016 VA examiner. Although pain was not observed on exam, the examiner did not indicate any reason to doubt the Veteran’s report of experiencing this symptom. Each of these reported symptoms is also consistent with the Veteran’s medical treatment records since his active service. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. As the Veteran is in receipt of the highest schedular rating for the external cutaneous nerve, there is no basis to award a higher evaluation under Diagnostic Code 8259. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence is against a rating in excess of 10 percent for the Veteran’s meralgia paresthetica. REASONS FOR REMAND 1. Service connection for gout affecting the left ankle, right ankle, left elbow, left toe/foot, left hip, left knee, and right knee The issue of entitlement to service connection for gout affecting the left ankle, right ankle, left elbow, left toe/foot, left hip, left knee, and right knee (gout) is remanded to correct a duty to assist error that occurred prior to the December 2018 rating decision on appeal. The AOJ obtained a December 2016 medical opinion prior to the December 2018 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran’s gout had its onset in service or is otherwise related to service. Specifically, the sole rationale provided was that the Veteran did not have a formal diagnosis of gout until 1996. The examiner failed to address whether the Veteran’s description of in-service symptoms, combined with evidence of elevated uric acid levels within six months of separation from service, provided evidence sufficient to show in-service onset or other relationship of gout to active service. Furthermore, gout, in at least certain manifestations, is a form of arthritis as Dorland’s defines it as: a group of disorders of purine metabolism, manifested by various combinations of (1) hyperuricemia and uric acid calculi; (2) recurrent acute inflammatory arthritis induced by crystals of monosodium urate monohydrate; and (3) tophaceous deposits of these crystals in and around the joints of the extremities, sometimes causing crippling destruction of the joints. Dorland’s Illustrated Medical Dictionary at 799 (32nd ed. 2012). Arthritis is a chronic disease that may be presumed service-connected if it manifested to a degree of at least 10 percent within a presumptive period, in this case one year, following the Veteran’s separation from active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is no opinion of record as to whether the Veteran’s gout (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. An addendum opinion is necessary to address these pre-decisional duty-to-assist errors. 2. Service connection for asthma, to include as secondary to service-connected chronic sinusitis A February 1994 rating decision denied service connection for asthma. As no NOD was filed and no evidence submitted within one year after the February 1994 rating decision was mailed, the rating decision became final. An April 2017 rating decision found that new and material evidence had been received to reopen the claim of service connection under 38 C.F.R. § 3.156. The December 2018 rating decision did not revisit this issue and addressed the Veteran’s claim of service connection for asthma on the merits. This is a favorable finding by the AOJ, and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The issue of entitlement to service connection asthma is remanded to correct a duty to assist error that occurred prior to the December 2018 rating decision on appeal. The AOJ obtained medical opinions of December 2016 and April 2017 prior to the December 2018 rating decision on appeal. However, these medical opinions do not provide an adequate rationale regarding whether the Veteran has asthma which either had its onset in service, is otherwise related to service, or was caused or aggravated by a service-connected disability. The December 2016 examiner opined that the “claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The rationale provided was that the only pulmonary function studies (PFTs) did not show the airway reversibility diagnostic of asthma. There are multiple problems with this opinion. First, the examiner mentioned that there were no PFTs more recent than 1991, but record at the time of the examination included private records with PFT results from January 2009 and January 2010. Second, the examiner noted a current diagnosis of asthma and did not clarify when this condition began, including the possibility that it began after the 1991 PFTs but before the Veteran separated from service in April 1993. Regarding secondary service connection, the examiner opined that the “condition claimed is at least as likely as not (50% or greater probability) proximately due to or the result of the Veteran’s service connected condition,” but provided a rationale stating that the Veteran’s history shows frequent episodes of chronic bronchitis due to sinusitis without mentioning asthma. It is not clear whether the examiner was saying that the chronic bronchitis is evidence that asthma is caused or aggravated by service-connected sinusitis or that chronic bronchitis is a separate chronic condition which is caused by the service-connected sinusitis. VA attempted to obtain clarifying addendum opinions in April 2017, but confusingly worded questions led to confusingly worded responses. The AOJ asked the April 2017 examiner to state whether the Veteran had “a diagnosis of (a) asthma that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) asthma treatment during service or proximately due to or the result of the service connected chronic sinusitis.” Responding to that prompt, the April 2017 examiner opined that the Veteran’s asthma was less likely than not caused by “asthma treatment” in service. The April 2017 examiner also noted that PFT and chest X-ray from April 2017 indicated normal findings and opined that the Veteran’s asthma has “no association to service-connected chronic sinusitis at this time.” The April 2017 examiner’s opinions did not address whether or not the Veteran’s asthma was related to anything in service other than “asthma treatment,” and did not discuss or clarify the December 2016 examiner’s confusing and inadequate secondary service connection opinion. A remand is required to correct the duty to assist errors which occurred before the December 2018 rating on appeal by obtaining clarifying addendum opinions on both direct and secondary service connection for asthma. 3. Service connection for Meniere’s disease The issue of entitlement to service connection for Meniere’s disease is remanded to correct a duty to assist error that occurred prior to the December 2018 rating decision on appeal. The AOJ did not obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether Meniere’s Disease had its onset in service or is otherwise related to service. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether Meniere’s Disease had its onset in service or is otherwise related to service. The AOJ also failed to obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether Meniere’s Disease is caused or aggravated by the Veteran’s service-connected hearing loss and/or tinnitus. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether Meniere’s disease is caused or aggravated by service-connected hearing loss and/or tinnitus. 4. Service connection for vertigo (also claimed as loss of balance and dizziness) The issue of entitlement to service connection for vertigo is remanded to correct a duty to assist error that occurred prior to the December 2018 rating decision on appeal. The AOJ did not obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether vertigo had its onset in service or is otherwise related to service. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether vertigo had its onset in service or is otherwise related to service. The AOJ also failed to obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether vertigo is caused or aggravated by the Veteran’s service-connected hearing loss and/or tinnitus. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether vertigo is caused or aggravated by service-connected hearing loss and/or tinnitus. 5. Service connection for erectile dysfunction, to include as secondary to service-connected hypertension The issue of entitlement to service connection for erectile dysfunction is remanded to correct a duty to assist error that occurred prior to the December 2018 rating decision on appeal. The AOJ did not obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether erectile dysfunction had its onset in service or is otherwise related to service. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether erectile dysfunction had its onset in service or is otherwise related to service. The AOJ also failed to obtain a VA examination prior to the December 2018 rating decision on appeal regarding whether erectile dysfunction is caused or aggravated by the Veteran’s service-connected hypertension. However, based on the evidence associated with the claims file prior to the December 2018 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether erectile dysfunction is caused or aggravated by service-connected hypertension. 6. Entitlement to individual unemployability is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for gout, asthma, Meniere’s disease, vertigo, and erectile dysfunction, could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his gout affecting the left ankle, right ankle, left elbow, left toe/foot, left hip, left knee, and right knee (gout). The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s gout at least as likely as not related to service, including in-service complaints of joint and foot pain? Is it at least as likely as not that the gout (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. The Veteran has stated that his symptoms began during service and continue to the present. He has submitted lab results from October 1993 showing elevated levels of uric acid. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his asthma. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s asthma at least as likely as not related to service, including in-service symptoms diagnosed in February 1981 as “suspected asthma,” and in January 1982 as “probable asthma (cough as asthma variant)?” Is the Veteran’s asthma at least as likely as not proximately due to service-connected chronic sinusitis? Is the Veteran’s asthma at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected sinusitis? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his Meniere’s disease. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s Meniere’s disease at least as likely as not related to service, including in-service reports of dizziness? Is the Veteran’s Meniere’s disease at least as likely as not proximately due to service-connected hearing loss and/or tinnitus? Is the Veteran’s Meniere’s disease at least as likely as not proximately due to asthma? Is the Veteran’s Meniere’s disease at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected hearing loss and/or tinnitus? Is the Veteran’s Meniere’s disease at least as likely as not aggravated, i.e., worsened beyond its natural progression, by asthma? Provide a rationale to support the opinions. The Veteran has cited medical literature stating that both hearing loss and tinnitus can be symptoms of Meniere’s disease. The Veteran has stated that he experienced symptoms of dizziness and fainting during service. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his vertigo. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s vertigo at least as likely as not related to service, including in-service reports of dizziness? Is the Veteran’s vertigo at least as likely as not proximately due to service-connected hearing loss and/or tinnitus? Is the Veteran’s vertigo at least as likely as not proximately due to asthma? Is the Veteran’s vertigo at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected hearing loss and/or tinnitus? Is the Veteran’s vertigo at least as likely as not aggravated, i.e., worsened beyond its natural progression, by asthma? Provide a rationale to support the opinions. The Veteran has cited medical literature stating that both hearing loss and tinnitus can be symptoms of vertigo. The Veteran has stated that he experienced symptoms of dizziness and fainting during service. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 5. Schedule the Veteran for a VA examination for his erectile dysfunction. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s erectile dysfunction at least as likely as not related to service? Is the Veteran’s erectile dysfunction at least as likely as not proximately due to service-connected hypertension, including medication prescribed to treat hypertension? Is the Veteran’s erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected hypertension, including medication prescribed to treat hypertension? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.