Citation Nr: 20028880 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 17-20 072 DATE: April 24, 2020 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to a 70-percent rating for posttraumatic stress syndrome (PTSD) and other specified depressive disorder is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to an earlier effective date of November 17, 2014, for the grant of a rating increase, from 10 percent to 20 percent, for type 2 diabetes is granted. Entitlement to an effective date earlier than November 12, 2015, for the grant of a rating increase, from 10 percent to 20 percent, for peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date earlier than November 12, 2015, for the grant of a rating increase, from 10 percent to 20 percent, for peripheral neuropathy of the right lower extremity is denied. REMANDED Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is related to his service-connected PTSD. 2. Throughout the period under review, the Veteran’s PTSD and other specified depressive disorder have been characterized by suicidal ideation, hypervigilance, depressed mood, sleep difficulty, irritability, memory problems, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. 3. The Veteran’s service-connected PTSD and peripheral neuropathy of the bilateral lower extremities prevent him from securing and following a substantially gainful occupation. 4. From November 17, 2014, the Veteran’s service connection type 2 diabetes mellitus requires an oral hypoglycemic agent and restricted diet. 5. Prior to November 12, 2015, there was no formal claim, informal claim, or written intent to file a claim of entitlement to an increased rating for peripheral neuropathy of the left lower extremity. 6. Prior to November 12, 2015, there was no formal claim, informal claim, or written intent to file a claim of entitlement to an increased rating for peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a). 2. The criteria for entitlement to a 70-percent rating, and no higher, for posttraumatic stress disorder and other specified depressive disorder, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. 4. The criteria for an effective date of November 17, 2014, but not earlier, for the assignment of a 20-percent rating for type 2 diabetes mellitus, have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.155, 3.400(o). 5. The criteria for an effective date earlier than November 12, 2015, for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400(o). 6. The criteria for an effective date earlier than November 12, 2015, for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals on appeal from rating decisions of April 2016, May 2016, and April 2017. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Service connection on a secondary basis generally requires a current disorder, a service-connected disability, and a nexus between the service-connected disease or injury and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including cardiovascular-renal disease, if the chronic disease is shown as such during service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has a duty to develop all theories of entitlement to service connection raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Furthermore, the claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for obstructive sleep apnea. A rating decision of November 2012 denied entitlement to service connection for sleep apnea. The Veteran appealed. See notice of disagreement (NOD) of October 2013 VA Form 9 of April 2017. The Veteran has obstructive sleep apnea. See VA treatment record of September 2011; October 2007 record of Dr. A. S. He alleges that it is due to his service-connected type 2 diabetes and PTSD. See NOD of October 2013; VA Form 9 of April 2017. The Veteran does not recall having any snoring problems during service and believes his sleep apnea symptoms began shortly after service separation. See transcript of January 2020 Board hearing. The Veteran is service-connected for type 2 diabetes and PTSD, among other disabilities. See rating decisions of August 2011 and April 2017. In October 2013, a disability benefits questionnaire for sleep apnea was prepared by Dr. Q. A. S.-U. (a VA doctor). The diagnosis and symptoms of the Veteran’s OSA were documented. No nexus opinion was offered. In December 2019 and April 2020, the Veteran submitted medical journal articles finding or suggesting that OSA is more prevalent among veterans who have a psychiatric disorder, including PTSD, than among individuals without such a disorder. In February 2020, Dr. M. S. provided a positive nexus opinion based on his review of the VA claims folder, including medical records. The Veteran’s sleep apnea was determined to be is at least as likely as not the result of service-connected PTSD. By way of a rationale, the doctor referenced several studies finding a correlation between OSA and PTSD. He noted that the Veteran has a significant history of PTSD and that the obstructive sleep apnea developed after PTSD was diagnosed. While the doctor’s opinion letter focused on PTSD as the cause of the Veteran’s sleep apnea, he also noted that research shows a clear link between type 2 diabetes mellitus and obstructive sleep apnea, even if an exact mechanism is not presently understood. Evidence that tends to weigh against the claim is the negative VA nexus opinion, obtained in January 2012. In the clinician’s opinion, the Veteran’s obstructive sleep apnea, first diagnosed after active duty, is not causally or etiologically related to service. The stated rationale was that a review of the current medical literature does not indicate that sleep apnea is a secondary condition of, or caused by, diabetes mellitus type 2. No elaboration was provided. The Board assigns more weight to the positive nexus opinion of Dr. M. S. than to the negative opinion of the VA clinician. The rationale of Dr. M. S. is more fully developed and takes into account medical literature finding a correlation between obstructive sleep apnea and PTSD. See Guerrieri V. Brown, 4 Vet. App. 467, 470-71 (1993). With the three elements of Wallin having been met, entitlement to service connection for obstructive sleep apnea, as caused by service-connected PTSD, is warranted. Increased rating Disability ratings assigned in accordance with VA’s Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. A “staged” rating may be appropriate if the service-connected disability exhibits symptoms meeting the criteria for different ratings in distinct time periods during the period under review. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a rating in excess of 50 percent for PTSD and other specified depressive disorder. A rating decision of April 2017 granted entitlement to service connection for PTSD and other specified depressive disorder, with a 50-percent evaluation and an effective date of January 18, 2012. The Veteran appealed as to the assigned rating. See NOD of May 2017; VA Form 9 of April 2017. Psychiatric disabilities, including PTSD, are rated under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, DC 9411, with the representative criteria for percentage ratings. A 50- percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (for example, retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70-percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100-percent rating is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name. The words “such symptoms as” in the General Rating Formula mean “for example.” See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A veteran may qualify for a given disability rating by symptoms that are similar in severity, frequency, and duration to the examples listed under § 4.130. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, all such effects will be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). An October 2011 record of Dr. E. T. (Ph.D. licensed psychologist) documents a psychiatric evaluation of the Veteran, with current symptoms of diagnosed PTSD noted to be: difficulty staying asleep; intermittent nightmares and weekly intrusive, involuntary thoughts about his Vietnam experience; generalized anxiety; bouts of moderate depression; becoming extremely upset when people, places, or events remind him of his Vietnam service; emotional numbness and absence of feeling; difficulty trusting others; no close friends and “rocky” interpersonal relationships; feeling alienated from others; a sense of doom, negativity, and overwhelming feelings of sorrow; loss of interest in former leisure activities, including socializing and fishing; frequent irritability; hypervigilance and exaggerated startle response; short-term and long-term memory loss; and impaired concentration and focus, with his mind wandering easily. On the Global Assessment of Functioning (GAF) scale, a score of 48 was assigned, which indicates “serious” symptoms or any serious impairment in social occupational or school functioning. Overall, the Veteran’s was considered to have occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, and/or mood. Based on the Veteran’s education, training, past work experience, and current level of symptoms, Dr. E. T. was of the opinion that he is not a viable rehabilitation candidate and not capable of sustaining gainful work activity. A VA psychiatric consult record of April 2012 diagnosed major depressive disorder, in partial remission. The Veteran reported daily sleep difficulty, nightmares, social isolation by staying at home, and a dislike of being around others. His symptoms included “intrusions,” less interest in hobbies and social activities, numbed feelings, difficulty concentrating, and being nervous and constantly on guard. The report also indicated “Yes Suicidality – LOW.” He endorsed a past, passive suicide attempt in which he suspended all medications for diabetes, blood pressure, and cholesterol. There was no current suicidal or homicidal ideation. He was considered capable of managing his financial affairs. A GAF score of 50 was assigned, indicating serious symptoms. In June 2012, the Veteran underwent a VA examination for PTSD. He reported having nightmares at least twice per month and feeling guilt over aspects of his Vietnam service. He also said that sometimes he does not leave the house for weeks. There was significant social avoidance, feelings of general unhappiness, dissatisfaction, and a lack of positive emotional responsiveness. A GAF score of 75 was assigned, indicating transient symptoms causing no more than slight impairment in social, occupational, or school functioning. The examiner concluded that the Veteran’s clinical profile was within normal limits. No mental disorder, including PTSD, was diagnosed under the DSM-IV. A VA treatment record (VATR) of September 2012 notes infrequent suicidal thoughts without a plan or intent, and no homicidal ideation. A VATR of October 2012 assigned a GAF score of 51, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. A VA treatment record of May 2013 notes that the Veteran, having begun treatment in September 2012 and attended 26 sessions of psychotherapy, was showing notable improvement in mood and general functioning were noted. He reported increased frequency of positive social interactions, increased comfort with public venues, and improved mood. The frequency of nightmares had decreased, but frequent nighttime awakenings continued. He was assigned a GAF score of 70, indicating some mild symptoms, but generally functioning pretty well, with some meaningful interpersonal relationships. In June 2013, Dr. E. T. submitted a disability benefits questionnaire (DBQ) for PTSD and a current report of psychiatric evaluation. She essentially found the same level of severity of PTSD as she had in October 2011 (deficiencies in “most areas”). The Veteran’s current symptoms of PTSD included: near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss; impairment of short-term and long-term memory; flattened affect; inability to establish and maintain effective relationships; and suicidal ideation. Dr. E. T. also commented in her report on the inconsistency of the June 2012 VA examiner in, on the one hand, noting that the Veteran complained of anxiety, depression, disturbances of motivation and mood, and suicidal ideation and had recently been diagnosed in VA treatment as having major depressive disorder and, on the other hand, not diagnosing any mental disorder. The Veteran again underwent a VA examination in October 2015. PTSD and “other specified depressive disorder” were diagnosed, with differentiation of the symptoms of the two disorders considered not to be possible. The Veteran reported that he is not comfortable when away from home. He described occasional panic attacks in which he becomes “paralyzed in his thoughts.” He reported frequent thoughts of suicide but denied any plan or intent to harm himself or others. The examiner identified the following symptoms relating to the diagnoses: depressed mood, anxiety, panic attacks occurring weekly or less often; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. At the examination, the Veteran was well-groomed, alert, and fully oriented. His speech was normal, and his thought processes were organized. There were no hallucinations, delusions, mania, or obsessive-compulsive features. He displayed no difficulties with his activities of daily living due to mental health issues. Overall, the Veteran’s was considered to have occupational and social impairment with reduced reliability and productivity. In December 2019, Dr. E. T. again submitted a DBQ and evaluation report which essentially found no lessening in the severity of the Veteran’s PTSD symptoms as noted in the previous reports of 2011 and 2013. There was still suicidal ideation, and the doctor added, as an additional, listed symptom, impaired impulse control such as unprovoked irritability with periods of violence. The Veteran argues that the record supports at least a 70-percent rating for his service-connected psychiatric disability. See NODs of October 2013 and May 2017. Taking all the evidence into account, including evidence of suicidal ideation, near-continuous panic attacks, and impaired impulse control, the Board determines that a 70- percent rating is warranted for the entire period under review. Although the VA examiners of October 2015 and June 2012 found symptoms consistent with lesser degrees of impairment, the three evaluation reports of Dr. E. T. consistently and amply document symptoms meriting a 70-percent rating under the rating criteria throughout the period under review. The Board is not able to assign more probative weight to VA evaluations that found lesser degrees of impairment. A preponderance of the evidence is against finding entitlement to a 100-percent rating. For example, the panic attacks, occasional loss of concentration, and impaired impulse control of the Veteran have not approximated the gross impairment in thought processes, grossly inappropriate behavior, and other symptoms that are listed in the General Rating Formula as examples of total occupational and social impairment. 3. Entitlement to a TDIU. In a notice of disagreement filed in October 2013, the Veteran asserted that he is entitled to a TDIU. The NOD otherwise relates to the denial of entitlement to service connection, by rating decisions of November 2012 and July 2013, for PTSD, right ear hearing loss, hypertension, ischemic heart disease, coronary artery disease, and obstructive sleep apnea. In September 2015, VA requested that the Veteran complete and return VA Form 21-8940. In November 2015, the Veteran filed VA Form 21-8940. A rating decision of May 2016 denied entitlement to a TDIU, and the Veteran appealed. See NOD of October 2016; VA Form 9 of. April 2017. A request for a total disability rating based on individual unemployability due to service-connected disabilities is an element of an increased rating claim when raised. It is not a freestanding claim but rather part of a claim for an increased rating for disability or disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board may assign a TDIU when a veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In order to be eligible for a TDIU rating on a schedular basis, if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The combined rating for the Veteran’s service-connected disabilities was 70 percent from January 18, 2012, with one disability (PTSD) rated at 50 percent. Accordingly, the Veteran meets the minimum schedular criteria for TDIU eligibility. The Veteran is a high school graduate. He worked as a field office appraiser for an insurance company from 1994 to 2010. See VA From 21-8940 of November 2015. An October 2015 VA examination report for mental disorders indicates that the Veteran worked at an auto dealership for 20 years and eventually ran the body shop there. He stated that he regretted being in charge of the body shop because he had to deal with people again. Subsequently, for approximately 15 years, he worked as a supervisor and then a regional manager of 52 persons in the area of appraisals at an insurance company. He reported feeling stress from dealing with people. The insurance company, he alleged, wanted him to step down as regional manager and then pressured him to leave the company altogether. The Veteran testified that, due to his PTSD, he would not be able to hold a job involving places where there are many people. From his last job, he remembers becoming “paralyzed” and losing focus when he had to deal with others. He states that, in the last years of his employment with the insurance company, he was allowed to work from home so that he could work in isolation and not interact directly with people. He states that, while he had trouble staying focused on his work when at home, and that this affected his performance, he was able to work remotely as a manager in this way. He was “not too bad” in that “protected environment.” He retired in March 2010, when he became eligible for Social Security retirement. See transcript of January 2020 Board hearing; October 2015 VA examination report for PTSD. In January 2016, the Veteran underwent a VA examination for diabetic sensory-motor peripheral neuropathy. In the examiner’s opinion, the Veteran is not able to climb or walk for extended periods of time throughout the day because of neuropathy. She also noted that the Veteran does not have good computer skills and would likely require extensive retraining in order to be competitive in the job market. See January 2016 VA addendum opinion. The Veteran reports that he loses his balance sometimes, that he doubts he could walk from place to place in a job setting, and that his feet “are dead right now.” See transcript of January 2020 Board hearing. In psychiatric evaluation reports of October 2011, June 2013, and December 2019, Dr. E. T. (Ph.D. licensed psychologist) determined the Veteran’s service-connected PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, and/or mood. In the doctor’s opinion, the Veteran is not capable of sustaining gainful work activity. The rationale cited the Veteran’s education, training, past work experience, and current level of PTSD symptoms, all of which were noted or explained in the doctor’s reports. The responsibility for making the TDIU determination is placed on the adjudicator and not a medical examiner. Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). On the basis of the entire record, including the psychiatric evaluation reports of Dr. E. T. and the VA examination report for diabetic sensory-motor peripheral neuropathy, the Board finds that, throughout the period under review, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD and peripheral neuropathy of the bilateral lower extremities. Consideration is given to his level of education and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA will adjudicate any ancillary benefits that arise as a result of the adjudication decision of a claim. 38 C.F.R. § 3.155(d)(2). An increased-rating claim may include the inferred issue of entitlement to special monthly compensation (SMC). See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). SMC is not inferred in this case, because the Veteran’s TDIU is not being awarded exclusively based on the symptoms of a single disability. SMC is payable at the rate under 38 U.S.C. § 1114 (s) if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of the veteran’s service-connected disability or disabilities, is permanently housebound. The disabilities independently ratable at 60 percent or more must be distinct from the 100-percent, service-connected disability and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). A TDIU rating based on a single disability, but not multiple disabilities, satisfies the requirement of 38 U.S.C. § 1114 (s) of a total rating. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019). Here, a TDIU is being awarded on the basis of both the Veteran’s service-connected PTSD and his peripheral neuropathy of the bilateral lower extremities. Accordingly, this is not a situation in which a claimant meets the SMC requirements under 38 U.S.C. § 1114(s) partly based on his or her TDIU, and the issue of SMC entitlement will not be adjudicated as an inferred issue raised by the record. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Effective Date Unless the law specifically provides otherwise, the effective date of an award based on a claim for an increased rating shall be fixed in accordance with the facts found, but it shall not be earlier than the date of receipt of the application for the increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If the evidence reflects that the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400(o)(2) does not apply, and the effective date is the date of the claim as under the general effective- date rules. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Effective February 19, 2019, VA amended its procedural regulations to implement the Veterans Appeals Improvement and Modernization Act of 2017 (84 Fed. Reg. 138, Jan. 18, 2019). 4. Entitlement to an effective date earlier than March 4, 2015, for the grant of a rating increase, from 10 percent to 20 percent, for type 2 diabetes. In February 2011, the Veteran filed a service-connection claim for diabetes mellitus type 2, which was granted by a rating decision of August 2011. The grant was based, in part, on the fact that type 2 diabetes is a listed disease for which service connection may be presumed based on herbicide exposure. A 20-percent rating was established with an effective date of February 18, 2011, the date that VA received the claim. It was also determined that the Veteran currently had no diabetic complications. A rating decision of November 2012 reduced the rating to 10 percent, effective October 26, 2011. The decision noted that it was not necessary to notify the Veteran of a proposed reduction, because the combined evaluation had not decreased. In November 2015, the Veteran filed a claim for rating increase. A rating decision of April 2016 increased the rating from 10 percent to 20 percent, with an effective date of November 12, 2015, the date of claim for rating increase. The Veteran appealed as to the effective date of the rating increase. See NOD of October 2016; VA Form 9 of April 2017. A rating decision of April 2017 continued the 20-percent rating but granted entitlement to an earlier effective date of March 4, 2015. Because that decision was not a total grant of the benefit sought on appeal, the Veteran’s effective-date claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In this case, there is no communication of record from the Veteran or his representative prior to November 12, 2015 that can be construed as a formal or informal claim for an increased rating for diabetes. 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). A VA treatment record of November 17, 2014 is the first record indicating that the Veteran is taking Metformin, an oral diabetes medicine, after having ceased taking it in 2007. A restricted diet and the taking of an oral hypoglycemic agent were the basis of the rating increase from 10 percent to 20 percent. 38 C.F.R. §§ 4.119, Diagnostic Code 7913. Because the increase in severity in the Veteran’s service-connected diabetes can be dated to November 17, 2014 (when Metformin was newly prescribed), and the claim for rating increase was filed on November 12, 2015, within one year of the increased severity, the effective date of the award of increased compensation is November 17, 2014, the earliest date as of which it is factually ascertainable that an increase in disability occurred. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If an award of compensation is due to a liberalizing change in the law or a liberalizing VA issue, the effective date of the award shall be fixed in accordance with the facts but shall not be earlier than the date of the change in the law. 38 U.S.C. § 5110 (g); 38 C.F.R. §§ 3.114 (a), 3.400(p). This provision applies to original and reopened claims as well as to claims for increase. Effective May 8, 2001, diabetes was added to the list of diseases eligible for presumptive service connection based on exposure to an herbicide agent. The Veteran’s claim for a rating increase relates to the rating criteria for diabetes, which were not liberalized. Therefore, the effective-date rule relating to an increased rating claim based on a liberalizing law does not apply to this issue. 5. Entitlement to an effective date earlier than November 12, 2015, for the grant of a rating increase, from 10 percent to 20 percent, for peripheral neuropathy of the left lower extremity. 6. Entitlement to an effective date earlier than November 12, 2015, for the grant of a rating increase, from 10 percent to 20 percent, for peripheral neuropathy of the right lower extremity. In February 2011, the Veteran filed a service-connection claim for diabetes mellitus type 2, which was granted by a rating decision of August 2011. The grant was based, in part, on the Veteran’s presumed exposure to an herbicide agent and the fact of type 2 diabetes having been added to the list of presumptive conditions associated with herbicides. A 20-percent rating and an effective date of February 18, 2011 (the date that VA received the claim) were established. It was also determined that the Veteran currently had no diabetic complications. In October 2011, the Veteran filed a service-connection claim for neuropathy of the lower extremities as secondary to service-connected diabetes. A rating decision of November 2012 granted entitlement to service connection for peripheral neuropathy of the left lower extremity associated with type 2 diabetes and for peripheral neuropathy of the right lower extremity associated with type 2 diabetes. For each disability, a 10-percent evaluation was assigned, to take effect October 26, 2011. In November 2015, the Veteran filed a claim for rating increase with respect to peripheral neuropathy of the bilateral lower extremities. A rating decision of April 2016 increased the evaluation of peripheral neuropathy of the left lower extremity and of the right lower extremity, from 10 percent to 20 percent, with an effective date of November 12, 2015, for both increases. The Veteran appealed as to the effective date of the rating increases. See NOD of October 2016; VA Form 9 of April 2017. In this case, there is no communication of record from the Veteran or his representative prior to November 12, 2015 that can be construed as a formal or informal claim for an increased rating for peripheral neuropathy of the lower extremities. 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). A preponderance of the evidence is also against finding that an increase in severity in the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities first occurred within one year prior to the filing of his claim for rating increase in November 2015. The rating increase was based on the findings of a January 2016 VA examination for diabetic sensory-motor peripheral neuropathy. REASONS FOR REMAND 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for ischemic heart disease. The Veteran filed a service-connection claim for ischemic heart disease in February 2011. Entitlement was denied by a rating decision of August 2011. The Veteran did not timely appeal the decision nor submit new and material evidence with regard to the issue within one year of the decision, which became final. 8 U.S.C. § 7105; 38 C.F.R. § 20.1103. On October 2013, the Veteran filed a service-connection claim for ischemic heart disease. A rating decision of November 2015 confirmed and continued the previous denial of service connection for ischemic heart disease. The Veteran appealed. See NOD of October 2016; VA Form 9 of April 2017. Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108. VA will generally presume the credibility of the evidence in determining whether evidence is new and material. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence has been submitted is low. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). By a regulatory change taking effect on August 31, 2010, a claim of entitlement to service connection for ischemic heart disease can be substantiated by a new evidentiary standard under 38 C.F.R. § 3.309 (e) (which relates to presumed service connection for certain diseases associated with exposure to certain herbicide agents). 75 Fed. Reg. 53, 202 (August 31, 2010). A claim based on a liberalizing law is a new claim requiring no new and material evidence to reopen the claim previously and finally disallowed. See Spencer v. Brown, 4 Vet. App. 283, 288 (1993), aff’d, 17 F.3d 368 (Fed. Cir. 1994); Sawyer v. Derwinski, 1 Vet. App. 130, 133 (1991). Here, because the 2010 liberalizing law was already in effect at the time of prior denial of service connection in August 2011, the Veteran’s October 2013 claim of entitlement to service connection claim for ischemic heart disease is not based on a new, liberalizing standard. Therefore, new and material evidence is required to reopen the claim. The Veteran’s October 2013 claim must be reviewed as an application to reopen a previously denied claim. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004). Evidence of record at the time of the August 2011 rating decision included service treatment records, service personnel records, VA treatment records, private treatment records, and statements of the Veteran. Medical assessments of structural heart disease, arrhythmia, left ventricular hypertrophy with borderline left atrial enlargement, and x-rays showing atherosclerotic changes of the thoracic aorta were of record. See 2007 and 2008 treatment records of Dr. A. S. Service treatment records of October 1965 to August 1969 were also of record, including a January 1966 examination record indicating a grade II/VI systolic ejection murmur along the left sternal border. The rating decision conceded the Veteran’s service in Vietnam and herbicide exposure. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. See Butler v. Brown, 9 Vet. App. 167, 171 (1996). New argument regarding evidence previously of record does not constitute new and material evidence. See Robertson v. Shinseki, 26 Vet. App. 169, 181 (2013). Furthermore, evidence that is unfavorable to an appellant’s case and that supports the previous denial cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). Evidence received since the August 2011 rating decision, including VA treatment records and an October 2015 VA examination for the heart includes, are not probative of any missing element of service connection, including a current disorder or an in-service disease or injury. VA treatment records of April 2012, November 2015, and March 2017 indicate a normal cardiovascular system (“RRR [regular rate and rhythm]”). An October 2015 VA examination for heart conditions found the Veteran to have no past or current heart condition. There was a specific finding that he has not had a cardiac arrhythmia. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the October 2015 VA examiner failed to note the 2007 and 2008 medical assessments relating cardiovascular symptoms. Because the conclusion that the Veteran has no current heart disorder was apparently reached on only a partial assessment of the factual record, the examination report is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board will remand for a new VA examination and readjudication of the issue of whether new and material evidence has been added the record since the last, prior final denial of the claim. The agency of original jurisdiction, if it reopens the claim, may readjudicate it on the merits. The Board notes that exposure to an herbicide agent is presumed in this case based on the Veteran’s service in the Republic of Vietnam. The diseases presumptively associated with herbicide exposure include ischemic heart disease. The presumption requires exposure to an herbicide agent and, in the case of ischemic heart disease, manifestation of the disease to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a), 3.307(d), 3.309(e), 4.104, DC 7005. 8. Entitlement to service connection for hypertension. A rating decision of November 2012 denied entitlement to service connection for hypertension and hyperlipidemia associated with type 2 diabetes. The Veteran appealed as to the hypertension denial. See NOD October 2013; VA Form 9 of April 2017. The Veteran has hypertension. See VA treatment record of October 2012. He is service-connected for type 2 diabetes and PTSD, among other disabilities. See rating decisions of August 2011 and April 2017. The Veteran argues that service connection is warranted on a direct basis as due to herbicide exposure and on a secondary basis as caused or aggravated by his service-connected PTSD. See VA Form 9 of April 2017. He also alleges that his hypertension is a consequence of his service-connected diabetes or purported cardiovascular disease (for which he also seeks service connection). See NOD of October 2013. Hypertension is among the listed chronic diseases for which service connection may be presumed if the disease becomes manifest to a compensable degree within one year following separation from service, or if there is a continuity of symptomatology from service or the presumptive period. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran’s exposure to an herbicide agent may be presumed in this case based on his service in the Republic of Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a), 3.309(e). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide exposure applies. Nonetheless, a claimant can establish service connection for a disability due to herbicide exposure with adequate evidence of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A February 2020 letter of Dr. M. S. states that the Veteran’s medical history includes “hypertension and hyperlipidemia associated with diabetes mellitus, type II.” To the extent that the statement may be construed as a positive nexus opinion for service connection on a secondary basis, the opinion is insufficient because no rationale was given for the opinion. See Miller v. West, 11 Vet. App. 345 (1998). The Veteran has submitted medical studies indicating that hypertension is related to Agent Orange exposure and can be comorbid with obstructive sleep apnea. See article submissions of April 2017 and December 2019. A medical article or treatise can provide important support for a claim when combined with an opinion of a medical professional. See Mattern v. West, 12 Vet. App. 222, 228 (1999). The Veteran underwent a VA examination for hypertension in October 2015. Hypertension was diagnosed. The date of the original diagnosis was “unknown.” The Veteran reported that he could not recall when he was first diagnosed. Fatigue and shortness of breath were noted to be physical findings or signs related to the hypertension diagnosis. In the opinion of the VA examiner, the Veteran’s hypertension is less likely than not proximately due to, or the result of, his service-connected type 2 diabetes. The reasoning was, in part, that VA treatment records indicate a history of hypertension prior to examination for diabetes. Furthermore, the examiner explained, the Veteran’s hypertension is less likely secondary to his diabetes mellitus because the latter disability is well controlled, the Veteran has had a normal hemoglobin A1c test since 2010, he does not have a diagnosis of kidney nephropathy, a GFR [glomerular filtration rate] test result of 58 in February 2015 was not significantly low, creatinine remains within normal value, and no protein leakage has been reported. On the current record, the Board cannot make a fully informed decision for several reasons. A VA medical opinion is needed as to possible aggravation by service-connected diabetes. A finding such as “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient to address the question of aggravation under § 3.310(b). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In addition, a VA medical opinion is needed as to the likelihood of possible causation or aggravation by service-connected PTSD and/or obstructive sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Moreover, to the extent that the Veteran’s hypertension may be caused or aggravated by cardiovascular disease (for which service connection is sought), the hypertension claim is inextricably intertwined with the remanded issue of whether the claim of entitlement to service connection for ischemic heart disease may be reopened. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Furthermore, a VA opinion is needed as to the likelihood of actual causation by herbicide exposure. The Board notes that the National Academy of Sciences (NAS) Institute of Medicine has updated its conclusion with respect to herbicide agents and hypertension, finding “sufficient” epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018). The October 2015 VA nexus opinion related to only to possible causation by diabetes mellitus, giving no consideration to possible causation by an herbicide agent. A remand is necessary for a new opinion that discusses the NAS’s 2018 update with respect to hypertension. The matters are REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding and identified private medical records that are pertinent to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records should be documented in the record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cardiovascular disorder, to include ischemic heart disease. The examiner must opine as to whether any cardiovascular disorder at least as likely as not: a. Is related to an in-service injury, disease, or event, to include presumed exposure to an herbicide agent; or b. Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or c. Is proximately due to a service-connected disability or other disorder or aggravated beyond its natural progression by a service-connected disability or other disorder. If the Veteran’s medical history indicates that the diagnosis of any cardiovascular disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the examiner that the mere fact that an evidentiary presumption has not been established for a diagnosed disorder based on herbicide exposure is not dispositive of the issue of a nexus between a current disorder and service. Consideration must still be given to the likelihood of actual causation by the herbicide exposure. Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s hypertension. A further examination may be scheduled if needed to adequately provide the requested opinions. The clinician must opine as to whether the Veteran’s hypertension at least as likely as not: a. Is related to an in-service injury, disease, or event, to include presumed exposure to an herbicide agent; or b. Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or c. Is proximately due to a service-connected disability or other disorder or aggravated beyond its natural progression by a service-connected disability or other disorder. Notify the clinician that the mere fact that an evidentiary presumption has not been established for a diagnosed disorder based on herbicide exposure is not dispositive of the issue of a nexus between a current disorder and service. Consideration must still be given to the likelihood of actual causation by the herbicide exposure. In particular, the clinician’s report must show consideration of the National Academy of Sciences (NAS) Institute of Medicine finding, in Veterans and Agent Orange: Update 11 (2018), of sufficient epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. Notify the clinician that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must indicate this in the examination report and provide a rationale for that determination. (Continued on the next page)   If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.