Citation Nr: 20037551 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-22 041 DATE: June 2, 2020 ORDER The petition to reopen the previously denied claim of service connection for erectile dysfunction is granted. Restoration of the 20 percent disability evaluation for lumbosacral strain with degenerative arthritis is denied. The petition to reconsider whether the assignment of a 10 percent disability evaluation for chronic kidney disease and hypertension effective August 10, 2015 was clearly and unmistakably erroneous is denied. Entitlement to a disability evaluation for chronic kidney disease aggravated by service-connected hypertension in excess of 10 percent from August 10, 2015 through March 7, 2016, in excess of 20 percent from March 8, 2016 through December 20, 2016, and in excess of 40 percent from December 21, 2016, is denied. Entitlement to a disability evaluation in excess of 10 percent for hypertension, to include a separate evaluation for hypertension prior to December 21, 2016, is denied. Entitlement to a disability evaluation for left lower extremity L-3 sensory deficit in excess of 10 percent from August 10, 2015 through July 14, 2019, and in excess of 40 percent from July 15, 2019 is denied. Entitlement to a disability evaluation for right lower extremity L-3 sensory deficit in excess of 10 percent from August 10, 2015 through July 14, 2019, and in excess of 20 percent from July 15, 2019 is denied. Entitlement to total disability rating based on individual unemployability (TDIU) prior to February 22, 2016 is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for erectile dysfunction and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the December 2013 decision, and it became final. 2. The additional documentation submitted since the December 2013 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for erectile dysfunction. 3. As of December 1, 2015, the 20 percent disability rating for the Veteran’s service-connected lumbosacral strain with degenerative arthritis had been in effect for less than five years. 4. Evidence at the time of the reduction demonstrated an overall improvement in the Veteran’s lumbosacral strain with degenerative arthritis and the disability picture more approximated the reduced rating of 10 percent. 5. The Veteran’s lumbosacral strain with degenerative arthritis is manifest by forward flexion to 90 degrees, with a combined range of motion of 230 degrees. 6. The January 2016 rating decision, which granted service connection for chronic kidney disease, aggravated by service-connected hypertension, was not erroneous. The record does not demonstrate that the correct facts, as they were known as of the January 2016 rating decision, were not before the Regional Office (RO), or that the RO incorrectly applied statutory or regulatory provisions at that time, such that the outcome of the claim would have been manifestly different but for the error. 7. The disability evaluations for chronic kidney disease aggravated by service-connected hypertension include a 60 percent baseline severity deduction. 8. From August 10, 2015 through March 7, 2016, chronic kidney disease manifested as a definite decrease in kidney function; from March 8, 2016 through December 20, 2016, chronic kidney disease manifested as persistent albuminuria and edema, with limitation of exertion and blood urea nitrogen (BUN) results between 40 and 80mg %; and from December 21, 2016 chronic kidney disease required regular dialysis. 9. The Veteran has been in receipt of a 10 percent disability evaluation for service-connected hypertension since November 1989. From August 10, 2015 through December 20, 2016, the Veteran’s non-compensable rating for chronic kidney disease was combined with his 10 percent disability evaluation for hypertension. 10. The Veteran’s hypertension does not result in diastolic pressure that is predominantly 110 or more, or systolic pressure that is predominately 200 or more. 11. The Veteran’s left lower extremity sensory deficits manifested by no more than mild incomplete paralysis from August 10, 2015 through July 14, 2019. From July 15, 2019, the Veteran’s left lower extremity sensory deficits more closely approximated moderately severe incomplete paralysis. 12. The Veteran’s right lower extremity sensory deficits manifested by no more than mild incomplete paralysis from August 10, 2015 through July 14, 2019. From July 15, 2019, the Veteran’s right lower extremity sensory deficits more closely approximated moderate incomplete paralysis. 13. The Veteran was not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities for the period from August 10, 2015 through February 21, 2016. CONCLUSIONS OF LAW 1. The December 2013 rating decision denying service connection for erectile dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence submitted since the December 2013 denial has been received, the criteria for reopening the claim of service connection for erectile dysfunction have been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for restoration of a 20 percent disability rating as of December 11, 2015 for a lumbosacral strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105 (e), (i), 3.344, 4.115(b), Diagnostic Code 5242. 4. The criteria for a disability rating in excess of 10 percent for lumbosacral strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. The January 2016 rating decision which granted service connection for chronic kidney disease, aggravated by service-connected hypertension, did not contain a clear and unmistakable error (CUE). 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105. 6. The criteria for a disability rating in excess of 10 percent from August 10, 2015 through March 7, 2016, in excess of 20 percent from March 8, 2016 through December 20, 2016, and in excess of 40 percent from December 21, 2016 for chronic kidney disease aggravated by service-connected hypertension have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.115b, Diagnostic Code 7530. 7. The criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.104, Diagnostic Code 7101. 8. The criteria for a disability rating in excess of 10 percent for left lower extremity L-3 sensory deficit from August 10, 2015 through July 14, 2019, and in excess of 40 percent from July 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 9. The criteria for a disability rating in excess of 10 percent for right lower extremity L-3 sensory deficit from August 10, 2015 through July 14, 2019, and in excess of 20 percent from July 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 10. The criteria for entitlement to TDIU are not met for the period prior to February 22, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to August 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2016, December 2016, February 2018 and September 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Reopening Criteria A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The petition to reopen the previously denied claim of service connection for erectile dysfunction is granted The claim of service connection for erectile dysfunction was denied in a December 2013 rating decision. The December 2013 decision was based on a review of the Veteran’s VA medical records and a VA medical opinion. The Veteran was notified of the decision in a December 2013 letter. He did not initiate an appeal or submit new and material evidence within one year, and the decision became final. 38 C.F.R. § 3.156(b). In August 2015, the Veteran petitioned to reopen the previously denied service connection claim for erectile dysfunction. In a January 2016 rating decision, the RO denied the claim, finding that the 2013 VA medical opinion showed the Veteran’s erectile dysfunction was caused by non-service-connected diabetes. Evidence submitted since the December 2013 rating decision includes a brief submitted by the Veteran’s representative, contending that his erectile dysfunction is related to his service-connected disabilities, including medications he takes to treat service-connected disabilities. Given that the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the December 2013 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Thus, the claim of entitlement to service connection for erectile dysfunction is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Restoration of a Reduced Evaluation Criteria Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses actual improvement of that disability. 38 C.F.R. § 3.344(c). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Veteran’s lumbosacral strain with degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 2. Restoration of 20 percent disability evaluation for lumbosacral strain with degenerative arthritis is denied. The Veteran challenges the reduction of the disability evaluation for lumbosacral strain with degenerative arthritis, from 20 percent to 10 percent. The Veteran contends that he is entitled to the higher evaluation for his lumbar spine disability, as he requires the use of several assistive devices. A rating action proposing such reduction was not warranted in this case because the rating reduction did not result in a reduction or discontinuance of current compensation payments. The Veteran has not alleged otherwise. 38 C.F.R. § 3.105(e). As this issue involves the reduction of a rating, the question is not whether the Veteran’s disability meets the criteria for a 20 percent rating, but whether the reduction in his rating was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The focus is on evidence available at the time the reduction was effectuated, although post-reduction medical evidence may be considered in evaluating whether the lumbar disability demonstrated actual improvement. Id. at 281-282 (1992). In this case, the RO granted service connection and assigned an initial 10 percent disability rating for lumbosacral strain with degenerative arthritis effective December 13, 2003, in a May 2004 rating decision. The rating was based on a description of the Veteran’s disability in an April 2004 VA examination report that included range of motion testing. A November 2012 rating decision increased the evaluation to 20 percent, effective May 31, 2011, primarily based on evidence that showed forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The combined ranges of motion of the thoracolumbar spine were greater than 120 degrees but not greater than 235 degrees. Additional symptoms included tenderness and painful motion. In a January 2016 rating decision, the reduction to 10 percent was implemented, effective December 11, 2015, following a December 2015 VA examination that noted limitation of flexion to 65 degrees, even after repetitive use testing. Pain was noted with movement in all ranges of motion. The examiner found the Veteran had localized tenderness of the lumbar spine, but there was no guarding or muscle spasms. The objective evidence of record demonstrates a material improvement in the Veteran’s disability. Private medical records from March 2018 note that upon inspection of his back, the Veteran demonstrated full range of motion without pain. During initial range of motion testing at a July 2019 VA examination, the Veteran demonstrated forward flexion of the thoracolumbar spine to 90 degrees. He had a combined range of motion of 230 degrees. The Veteran was noted to experience pain that caused functional loss in all ranges of motion. This evidence forms the basis for the current 10 percent rating under the general rating formula for spinal disabilities. See 38 C.F.R. § 4.71a. While the Veteran required the use of assistive devices, there was no evidence of ankylosis or neurological abnormalities. The Board notes that the Veteran is service-connected and compensated for radiculopathy of the bilateral lower extremities. In summary, the Board finds that the reduction from 20 percent to 10 percent for lumbosacral strain with degenerative arthritis as of December 11, 2015 was proper based on actual improvement in the condition. Therefore, the Board finds that the preponderance of the evidence is against the claim and restoration of the 20 percent rating for lumbosacral strain with degenerative arthritis is not warranted. 38 U.S.C. § 5107 (b). Clear and Unmistakable Error Criteria A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. “[CUE] is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error occurred based on the record and the law that existed at the time the prior decision was made; and (3) had the error not been made, the outcome would have been manifestly different Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, the error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, supra. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Id. at 44. A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). 3. The petition to reconsider whether the assignment of a 10 percent disability evaluation for chronic kidney disease and hypertension effective August 10, 2015 was clearly and unmistakably erroneous is denied The Veteran contends that there was a CUE in the January 2016 rating decision that assigned a 10 percent disability evaluation for chronic kidney disease aggravated by service-connected hypertension. Though the Veteran’s representative submitted a brief in March 2020, it did not specifically outline why the rating assigned for chronic kidney disease constitutes a CUE. When evaluating a disability that has been service connected based on aggravation, VA must determine the extent of the aggravation and deduct the baseline level of severity as well as any increase due to the natural progression of the disease. 38 C.F.R. § 3.310(b). In a January 2016 rating decision, the RO granted service connection for chronic kidney disease, finding it was permanently worsened by service-connected hypertension. Based on a December 2015 VA examination and medical opinion, it was determined that prior to aggravation, the Veteran’s chronic kidney disease was considered to meet the 60 percent disability rating. The VA examiner also determined that when considering any aggravation caused by hypertension, the Veteran’s chronic kidney disability did not warrant a disability rating in excess of 60 percent. Thus, the pre-aggravation disability evaluation of 60 percent was deducted before the assignment of an evaluation for service connection, which resulted in a noncompensable rating for chronic kidney disease, effective August 10, 2015, the date of the claim. The Board notes that the Veteran was in receipt of a 10 percent disability evaluation for hypertension, effective November 15, 1989. When service connection was granted for chronic kidney disease due to being aggravated by service-connected hypertension, the RO rated the two disabilities together from December 10, 2015, rated at 10 percent disabling. In a February 2018 rating decision, the RO granted a disability rating of 20 percent effective March 8, 2016, and a 40 percent rating effective December 21, 2016 for chronic kidney disease based on medical evidence showing a worsening of the disability. The RO again deducted the baseline pre-aggravation disability rating of 60 percent to determine the increased evaluations. Therefore, when adding together the pre-aggravation rating of 60 percent with the current 40 percent rating, the Veteran is now in receipt of the highest possible disability rating for chronic kidney disease. The RO also discontinued combining the disability ratings for hypertension and chronic kidney disease, and separately continued the 10 percent rating for hypertension. Under the facts of this case, the Board finds the RO appropriately assigned disability evaluations for chronic kidney disease due to aggravation by service-connected hypertension. There is no indication that the RO did not have the correct facts at the time, nor did the RO incorrectly apply statutory or regulatory provisions. Further, the Veteran has not specifically explained why a CUE exists with regard to the ratings assigned for chronic kidney disease. Accordingly, there was no CUE in the January 2016 rating decision, and revision on the basis of CUE to reflect a rating in excess of 10 percent for chronic kidney disease effective August 10, 2015 is denied. Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 4. Entitlement to a disability evaluation for chronic kidney disease, aggravated by service-connected hypertension, in excess of 10 percent from August 10, 2015 through March 7, 2016, in excess of 20 percent from March 8, 2016, and in excess of 40 percent from December 21, 2016, is denied. The Veteran asserts that he is entitled to higher disability evaluations for his chronic kidney disease. The Veteran’s chronic kidney disease was rated as 10 percent disabling from August 10, 2015, 20 percent from March 8, 2016, and 40 percent from December 21, 2016. As discussed above, a baseline disability rating of 60 percent has been deducted from each of the ratings associated with the Veteran’s kidney disease. His kidney disability is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7530, which states that chronic renal disease requiring regular dialysis is rated as renal dysfunction. Under 38 C.F.R. § 4.115a, renal dysfunction with constant albuminuria with some edema or definite decrease in kidney function or hypertension at least 40 percent disabling under Diagnostic Code 7101 (hypertension), warrants a 60 percent rating; with persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating; and requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria or BUN more than 80 mg% or creatinine more than 8 mg% or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. 38 C.F.R. § 4.115b. August 10, 2015 -March 7, 2016 In August 2015, the Veteran submitted a kidney conditions disability benefits questionnaire (DBQ) completed by Dr. D.M., a private physician. The Veteran was diagnosed with hypertensive chronic kidney disease. He was assessed to have symptoms of persistent albuminuria and transient edema. In December 2015, a VA examiner provided a medical opinion regarding the Veteran’s kidney disease. The examiner reviewed the Veteran’s medical records, noting that his kidney disease was exacerbated by hypertension. Additionally, the examiner determined that the baseline severity of the kidney disease prior to being aggravated by hypertension was evidence by uncontrolled hypertension and the need for a fourth medication for treatment. The examiner stated that the lab values for the Veteran’s renal function was worsening and that he had edema. The Board finds a rating in excess of 10 percent is not warranted for the period of August 10, 2015 through March 7, 2016. Based on the VA examiner’s finding of decreased kidney function, the Veteran’s baseline severity for chronic kidney disease was equivalent to a 60 percent rating under the schedular rating for renal dysfunction. The medical evidence does not support a finding for an 80 percent rating, as the Veteran’s chronic kidney disease did not result in persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. After deducting the baseline rating of 60 percent, the Veteran’s chronic kidney disease is evaluated at zero percent. However, because the kidney disease was aggravated by service-connected hypertension, the conditions were afforded a combined rating of 10 percent. Accordingly, the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent from August 10, 2015 through March 7, 2016. March 8, 2016 – December 20, 2016 The evaluation for chronic kidney disease was increased to 20 percent beginning March 8, 2016. A lab report contained within VA medical records from March 8, 2016 show the Veteran’s BUN results were 47 mg%. In October 2016, the Veteran was afforded a VA kidney conditions examination. He was noted to have symptoms of persistent albuminuria and edema, as well as limitation of exertion. The Board finds that from March 8, 2016 through December 20, 2016, the Veteran’s chronic kidney disease met the criteria for an 80 percent rating, which resulted in a 20 percent rating after deducting the baseline severity of 60 percent. Medical records show that during the relevant period, the Veteran’s BUN levels were between 40 to 80 mg%, and his symptoms included persistent edema and albuminuria. He did not require regular dialysis, nor was he precluded from more than sedentary activity due to persistent edema, persistent albuminuria, or BUN levels of 80 mg% or more. Accordingly, entitlement to a disability evaluation in excess of 20 percent from March 8, 2016 through December 20, 2016 for chronic kidney disease is denied. December 21, 2016 - Present Effective December 21, 2016, the Veteran’s disability evaluation for chronic kidney disease was increased to 40 percent. VA medical records indicate that the Veteran began receiving regular dialysis on December 21, 2016. Requiring regular dialysis warrants a 100 percent disability evaluation under the schedular rating for renal dysfunction. The Board finds the Veteran is in receipt of the maximum evaluation allowed for chronic kidney disease as of December 21, 2016. Though he meets the criteria for a 100 percent rating, his kidney disability was assigned a 40 percent evaluation after deducting the 60 percent baseline evaluation from the 100 percent rating criteria. Therefore, the preponderance of the evidence is against finding that the Veteran is entitled to a disability evaluation in excess of 40 percent from December 21, 2016 for chronic kidney disease. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to an evaluation in excess of 10 percent for hypertension and entitlement to a separate evaluation prior to December 21, 2016 is denied. The Veteran seeks an increased rating for his service-connected hypertension in excess of the 10 percent assigned. The Veteran’s hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that the Veteran has been in receipt of a 10 percent rating for hypertension since November 15, 1989. Though the 10 percent rating for hypertension was combined with a noncompensable rating for chronic kidney disease from August 10, 2015 through December 20, 2016, at no point has the Veteran not received the 10 percent rating for hypertension. Thus, his claim for a separate evaluation prior to December 21, 2016 is moot. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Turning to the relevant evidence of record, the Veteran was provided a VA hypertension examination in December 2015. The examiner noted that the Veteran’s treatment plan for service-connected hypertension includes taking continuous medication. Following a review of the Veteran’s medical records, the examiner concluded that the Veteran had a history of diastolic blood pressure elevation to predominantly 100 or more. Specifically, the examiner found that from April 2015 through November 2015, 19 of 25 of the Veteran’s blood pressure readings measured diastolic blood pressure greater than 100. His average blood pressure reading measurements were 198 systolic and 109 diastolic. The Veteran was afforded another VA hypertension examination in October 2016. The examiner noted the Veteran required continuous medication to manage his hypertension. Upon examination, the Veteran displayed blood pressure readings of 148/98, 146/102, and 146/98. His average blood pressure reading measurements were 147 systolic and 99 diastolic. At July 2019 VA examinations for other disabilities, the Veteran’s blood pressure readings were 170/98, 178/94, and 174/90. Additionally, all of the relevant medical evidence of record has been reviewed, including numerous treatment records that contain blood pressure readings. In sum, during the period on review, there is not a showing of predominant readings of diastolic pressure at 110 or above or systolic pressure above 200 to warrant a 20 percent rating. The Board therefore finds that the preponderance of the evidence is against finding that the Veteran is entitled to a disability evaluation in excess of 10 percent for service-connected hypertension. The benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. At 57 (1990). 6. Entitlement to a disability evaluation for left lower extremity L-3 sensory deficit in excess of 10 percent from August 10, 2015 through July 14, 2019, and in excess of 40 percent from July 15, 2019 is denied. 7. Entitlement to a disability evaluation for right lower extremity L-3 sensory deficit in excess of 10 percent August 10, 2015 through July 14, 2019, and in excess of 20 percent from July 15, 2019 is denied. The Veteran contends that he is entitled to higher ratings for his bilateral lower extremity sensory deficit disability. In a March 2020 brief, the Veteran stated that his bilateral leg nerve damage is severe and impacts his ability to walk and stand. He also stated that to ambulate he uses several assistive devices, including a scooter. The Veteran’s bilateral lower extremity L-3 sensory deficits are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Service connection was established on May 31, 2011, with each leg assigned a 10 percent rating based on findings during an October 2011 VA examination. The Veteran filed for increased ratings on August 10, 2015. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. August 10, 2015 - July 14, 2019 The Board finds that the severity of the Veteran’s sensory deficits of the bilateral lower extremities did not warrant ratings in excess of 10 percent from August 10, 2015 through July 14, 2019. The Veteran attended a VA thoracolumbar spine examination in December 2015. He was not diagnosed with radiculopathy. The examiner stated that there are no electrodiagnostic studies to support a diagnosis of radiculopathy, and that upon examination, there was no objective evidence of radiculopathy of the bilateral lower extremities. In the January 2016 rating decision, the RO noted that because neurological conditions are known to wax and wane, the assigned 10 percent ratings would be continued but the Veteran would be a afforded a future VA examination to assess his bilateral lower extremity disability. The Veteran attended a VA peripheral nerves examination in October 2016. The examiner determined that the Veteran did not have a diagnosis associated with either lower extremity. During an August 2017 VA peripheral nerves examination, the Veteran reported having symptoms of pain, tingling, and numbness of the legs. He was determined to have mild incomplete paralysis of the sciatic nerve of the left lower extremity, and mild intermittent pain, paresthesias, and numbness of the right lower extremity. The Veteran was wheelchair bound, but the examiner stated this was due to a stroke the Veteran suffered in February 2016, which impacted the left side of his body. He did not have any muscle atrophy or trophic changes. The preponderance of the evidence is against finding that the Veteran’s bilateral lower extremity sensory deficits resulted in moderate incomplete paralysis. At worst, the Veteran was determined to have only mild incomplete paralysis associated with the sciatic nerve of each leg. A review of medical records fails to show the Veteran’s sensory deficit disability resulted in more than mild incomplete paralysis. The Board acknowledges the Veteran’s reports of requiring the use of assistive devices, including a wheelchair and scooter. However, as noted in the August 2017 VA examination report, the Veteran’s abnormal gait was also related to his stroke. Accordingly, entitlement to disability evaluations in excess of 10 percent for sensory deficits for each lower extremity from August 10, 2015 through July 14, 2019 is denied. July 15, 2019 - Present In July 2019, the Veteran was afforded VA examinations to assess his peripheral nerve and spine conditions. The examinations were conducted by the same examiner. The Veteran reported experiencing daily weakness in his left leg, and pain with numbness in the right leg. As treatment, the Veteran applied a topical cream. He was determined to have mild constant pain, paresthesias, and numbness of the bilateral lower extremities. The Veteran did not have muscle atrophy. However, he was noted to have decreased sensation during sensory testing, as well as trophic changes, as evidenced by thin, shiny skin on the lower extremities. The examiner determined that the Veteran had mild incomplete paralysis of the sciatic nerve of the right leg, and moderate incomplete paralysis of the sciatic nerve of the left leg. The Veteran was also noted to have mild incomplete paralysis of the internal popliteal and posterior tibial nerves of the right leg, and moderate incomplete paralysis of the internal popliteal and posterior tibial nerves of the left leg. Based on the above, the Board finds that the severity of the Veteran’s left leg sensory deficits does not warrant a rating in excess of 40 percent from July 15, 2019. A review of medical records fails to show the Veteran’s left leg disability more closely approximated severe incomplete paralysis with marked muscular atrophy. As noted during the July 2019 VA examination, the Veteran did not have atrophy of the left leg. At worst, he experienced moderate incomplete paralysis of the sciatic nerve of the left leg, which is consistent with a 20 percent rating. Due to also experiencing moderate incomplete paralysis of the internal popliteal and posterior tibial nerves in addition to the Veteran’s sciatic nerve condition, the RO appropriately determined that the combined impact of these conditions resulted in impairment most consistent with a 40 percent evaluation. Separate ratings for each involved nerve of the left leg is not allowed under 38 C.F.R. § 4.14, as evaluation of manifestations of the same disability under various diagnoses is to be avoided. Thus, the preponderance of the evidence is against finding that the Veteran is entitled to a disability evaluation in excess of 40 percent for left lower extremity sensory deficits, and the claim is denied. The Board also finds the severity of the Veteran’s right leg sensory deficits does not warrant a rating in excess of 20 percent. A review of medical records fails to show the Veteran’s right leg disability more closely approximated moderately severe incomplete paralysis. As noted during the July 2019 VA examination, at worst, the Veteran’s right leg sensory deficits result in mild incomplete paralysis of the sciatic, internal popliteal, and posterior tibial nerves. Though a finding of mild incomplete paralysis is consistent with a 10 percent rating, the Veteran was granted a 20 percent rating to account for the involvement of multiple nerves and to avoid being improperly assigned separate evaluations for diagnoses resulting in the same disability. See 38 C.F.R. § 4.14. Accordingly, the preponderance of the evidence is against finding that the Veteran is entitled to a disability evaluation in excess of 20 percent for right lower extremity sensory deficits, and the claim is denied. TDIU Criteria VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 8. Entitlement to TDIU prior to February 22, 2016 is denied The Veteran contends that he is entitled to TDIU prior to February 22, 2016. In the brief submitted in March 2020, the Veteran asserted that his service-connected disabilities prevented him from following substantially gainful occupation before February 22, 2016. The Board notes that the Veteran was originally denied entitlement to TDIU in a November 2012 rating decision. The Veteran submitted a NOD in December 2012, but he did not request to appeal the decision regarding his TDIU claim. Thus, the November 2012 rating decision became final. 38 C.F.R. § 20.1103. On March 31, 2018, the Veteran submitted an application for TDIU. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of entitlement to TDIU is considered part and parcel of an increased rating claim. Therefore, the Board finds the appeal period for the Veteran’s TDIU claim begins August 10, 2015, the date of his increased ratings claims. Since February 22, 2016, the Veteran has been in receipt of a 100 percent combined disability evaluation. From May 31, 2011, the Veteran’s combined disability evaluation was 70 percent. From August 10, 2015 through February 21, 2016, the Veteran was service-connected for the following conditions: coronary artery disease with hypertensive heath disease rated at 60 percent; chronic kidney disease associated with hypertension rated at 10 percent; left lower extremity sensory deficit rated at 10 percent; right lower extremity sensory deficit rated 10 percent; right knee medial collateral ligament laxity rated at 20 percent; left knee subluxation rated at 20 percent; right knee arthritis rated at 10 percent; left knee osteoarthritis rated at 10 percent; lumbosacral strain with degenerative arthritis rated at 20 percent from May 31, 2011 and 10 percent from December 11, 2015; and hypertension rated at 10 percent. Though the Veteran meets the threshold percentage requirement for TDIU schedular criteria for the period on appeal, the Board finds the preponderance of the evidence is against the assignment of a TDIU rating prior to February 22, 2016. The Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. The record shows that during the period on appeal, the Veteran was employed. In his March 2018 TDIU application, the Veteran indicated that he worked 60 hours per week as a chef from 2015 through 2016. The Board acknowledges that during December 2015 VA examinations, the Veteran’s spine disability limited his lifting and bending, and the Veteran reported experiencing dizzy spells due to his hypertension. However, the VA examiner determined the Veteran was capable of performing sedentary work. Because the Veteran was gainfully employed during the period on appeal, the Board finds that he is not entitled to a TDIU rating prior to February 22, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Service connection for erectile dysfunction is remanded. The Veteran seeks entitlement to service connection for erectile dysfunction. He contends his erectile dysfunction is related to having a stroke he experienced in 2016. In the alternative, the Veteran asserts his erectile dysfunction is caused by the medications he takes for service-connected disabilities. The Board notes that the Veteran has a diagnosis of erectile dysfunction, and a VA examiner opined in 2013 that erectile dysfunction was caused by non-service-connected diabetes mellitus. During a July 2019 VA examination assessing central nervous system conditions and diseases, the VA examiner noted the Veteran’s diagnosis of erectile dysfunction, and stated the condition was due to age. However, the record does not contain any medical opinions that address whether the Veteran’s erectile dysfunction is also related to or aggravated by any service-connected disabilities and/or the medications used to treat those disabilities. Remand for a new VA opinion is therefore warranted to clarify the etiology of the Veteran’s diagnosed erectile dysfunction to include the question of aggravation. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: 1. Obtain and associate any outstanding VA medical records with the claims file. 2. Send the Veteran’s claims file to an appropriate examiner. The examiner is requested to review the claims file in its entirety. Then, the examiner should respond to the following: (a.) Is it at least as likely as not that the diagnosed erectile dysfunction was caused by any service-connected disability? (b.) Is it at least as likely as not that the diagnosed erectile dysfunction was caused by a medication prescribed to treat any service-connected disability? (c.) Is it at least as likely as not that the Veteran’s diagnosed erectile dysfunction is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by any service-connected disability? (d.) Is it at least as likely as not that the Veteran’s diagnosed erectile dysfunction is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a medication prescribed to treat any service-connected disability? 3. If the Veteran’s diagnosed erectile dysfunction is aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. 4. Should the examiner decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. 5. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate 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.