Citation Nr: 21001799 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-11 261A DATE: January 11, 2021 ORDER Entitlement to service connection for left and right upper extremity neuropathy is denied. Entitlement to service connection for a cardiac disability is granted. Entitlement to a noninitial disability rating in excess of 20 percent for service-connected type II diabetes mellitus is denied. REMANDED Petition to reopen entitlement to service connection for Parkinson’s disease (now characterized as essential tremor) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than January 21, 2015 for the award of a separate compensable rating for the Veteran’s diabetic neuropathy of the right lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to June 27, 2018, and in excess of 40 percent thereafter, for the Veteran’s diabetic neuropathy of the right lower extremity is remanded. Entitlement to an effective date earlier than January 21, 2015 for the award of a separate compensable rating for the Veteran’s diabetic neuropathy of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to June 27, 2018, and in excess of 20 percent thereafter, for the Veteran’s diabetic neuropathy of the left lower extremity is remanded. Entitlement to an effective date earlier than August 4, 2010, and an initial compensable rating, for the Veteran’s service-connected hypertension is remanded. Entitlement to an effective date earlier than November 22, 2010, and an initial compensable rating, for the Veteran’s service-connected gout is remanded. Entitlement to an effective date earlier than January 21, 2015 for the award of a separate rating for the Veteran’s diabetic nephropathy is remanded. Entitlement to an initial compensable disability rating prior to July 15, 2016, and in excess of 60 percent thereafter, for the Veteran’s diabetic nephropathy, to include entitlement to an earlier effective date for the higher 60 percent rating, is remanded. FINDINGS OF FACT 1. The most probative evidence fails to demonstrate that the Veteran has experienced left and right upper extremity neuropathy, or related upper extremity symptoms resulting in a functional impairment of earning capacity, within the appellate period. 2. The most probative evidence has demonstrated that the Veteran has been diagnosed with coronary artery disease within the appellate period, which is presumptively linked to his in-service exposure to herbicide agents. 3. Throughout the appellate period, the Veteran’s service-connected type II diabetes mellitus has required an oral hypoglycemic agent and a restricted diet. The Veteran’s use of daily injective insulin has been variable over the appellate period. There is no probative evidence that the Veteran’s service-connected type II diabetes mellitus has required regulation of activities within the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left and right upper extremity neuropathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.310. 2. The criteria for entitlement to service connection for a cardiac disability have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. § 3.303, 3.307, 3.309. 3. The criteria for entitlement to a noninitial disability rating in excess of 20 percent for service-connected type II diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1967. The Veteran has verified service in the Republic of Vietnam between July 1966 and June 1967 and is presumed to have been exposed to herbicide agents during his active duty service. 38 C.F.R. § 3.307(a)(6)(iii). These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2011, September 2011, July 2017, August 2018, and October 2018 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran has declined optional Board hearings for the claims adjudicated below. The undersigned Veterans Law Judge has been assigned to consider this appeal pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). In a December 2020 correspondence, the Veteran, through his attorney, waived initial RO consideration of all evidence received since the February 2019 Supplemental Statement of the Case. Accordingly, the Board may proceed with its appellate review of the claims adjudicated below. 1. Entitlement to service connection for left and right upper extremity neuropathy is denied. The Veteran seeks entitlement to service connection for left and right upper extremity neuropathy as secondary to his service-connected type II diabetes mellitus. Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Under certain circumstances, service connection may also be achieved by application of relevant presumptive and secondary service connection regulations, where appropriate. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a present disability. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that section 1131 requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (applying Degmetich to section 1110); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (recent diagnoses predating filing of claim are relevant evidence in determining whether a current disability existed at time claim was filed or during its pendency). Here, the Board has fully reviewed the electronic claims file and finds no probative evidence that the Veteran has experienced clinically significant peripheral neuropathy in the left or right upper extremities. The Veteran attended a VA examination in October 2010 where he explicitly denied the presence of peripheral neuropathy. Detailed reflex examination, sensory examination, and motor strength were normal in the left and right upper extremities. At a January 2015 VA examination, diabetic neuropathy was only found in the lower extremities. The Veteran did not report constant pain, intermittent pain, paresthesias/dysesthesias, or numbness in the upper extremities. The VA examiner stated that the Veteran did not have upper extremity diabetic neuropathy. At an April 2017 VA examination, muscle strength, deep tendon reflexes, light touch/monofilament testing, position sense, and vibration sense were normal in the upper extremities. The VA examiner stated that the Veteran did not have upper extremity diabetic peripheral neuropathy. At a June 2018 VA examination, the Veteran reported no constant pain, mild intermittent pain, no paresthesias/dysesthesias, and no numbness in the upper extremities. Neurologic examination showed normal muscle strength, deep tendon reflexes, light touch/monofilament testing, position sense, vibration sense, and cold sensation in the upper extremities. There were no trophic changes. The VA examiner concluded that the Veteran did not have upper extremity diabetic peripheral neuropathy. At a July 2019 VA examination, the VA examiner determined that the Veteran did not have upper extremity diabetic neuropathy. The Board has reviewed the private and VA treatment records throughout the appellate period, and they similarly lack a formal diagnosis of peripheral neuropathy affecting the Veteran’s left and right upper extremities. Historically, symptoms such as pain, numbness, or weakness, without a diagnosed or identifiable underlying malady, were not sufficient to establish a present disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain (and other symptoms) can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment of earning capacity. Here, there is no probative evidence that any symptoms in the bilateral upper extremities has resulted in a functional impairment which limited the Veteran’s earning capacity. Notably, neither the Veteran nor his attorney has submitted any argument citing to evidence of record showing the presence of bilateral upper extremity neuropathy, or evidence that his bilateral upper extremity symptoms have resulted in functional impairment of earning capacity. Consequently, the Board finds that the Veteran has not experienced bilateral upper extremity peripheral neuropathy for VA compensation purposes within the appellate period. See Sanchez-Benitez I and Saunders, supra. In the absence of a present disability, the Veteran’s appeal seeking entitlement to service connection for left and right upper extremity neuropathy must be denied. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Entitlement to service connection for a cardiac disability is granted. In April 2017, the Veteran filed a claim seeking entitlement to service connection for a heart condition. The Veteran was afforded a VA examination in April 2017 where the Veteran was diagnosed with cardiomyopathy. The VA examiner declined to link the Veteran’s cardiomyopathy to his service-connected type II diabetes mellitus, stating “one would expect that if his heart disease was due to his diabetes, that it would be due to the acceleration of his lipidemia and the development of significant CAD [coronary artery disease]. His catheterization did not show significant CAD.” Based on this VA examination, the RO limited the appeal to cardiomyopathy and denied the claim in a July 2017 rating decision. The Veteran’s attorney filed a timely Notice of Disagreement as well as argument noting that the Veteran’s private cardiology records contained a diagnosis of coronary artery disease. The Board has reviewed these records, and indeed, they show a diagnosis of coronary artery disease within the appellate period. McClain, supra. In light of the above, the Board finds that the RO inappropriately limited the scope of the Veteran’s claim to entitlement to service connection for cardiomyopathy. When the Veteran filed his claim, he asserted entitlement to service connection based on a general heart condition, and the evidence of record shows the presence of cardiomyopathy, coronary artery disease, and other cardiac findings. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record as required by law. Id. at 5-6. Accordingly, the Board has elected to broaden and recharacterize the claim as one seeking entitlement to service connection for a cardiac disability. Based on the evidence of record showing a diagnosis of coronary artery disease within the appellate period, the RO sought clarification from the April 2017 VA examiner on why she did not discuss the evidence of record showing coronary artery disease. In an October 2018 addendum opinion, the VA examiner stated, “I did not include a diagnosis of CAD for two reasons: first, his CAD is not significant, and secondly, it is not information which was needed in order to render the opinion. His main cardiac diagnosis is cardiomyopathy, secondary to mitral regurgitation which is not related to his diabetes, and THAT is what the exam focused on.” (emphasis in original). The Board does not find this explanation persuasive. In the context of a service connection claim, the question is whether the Veteran had a current disability, not the severity of the disability. Thus, it is irrelevant whether the Veteran’s coronary artery disease or cardiomyopathy is the more significant cardiac disability experienced by the Veteran. The Board interprets this medical opinion as confirming that the Veteran experiences coronary artery disease, albeit to a lesser degree of severity when compared to his cardiomyopathy. The evidence establishes that the Veteran was presumed to be exposed to herbicide agents through his service in the Republic of Vietnam between July 1966 and June 1967. See 38 C.F.R. § 3.307(a)(6)(iii). Additionally, coronary artery disease is on the list of disabilities presumed to have been caused by in-service exposure to herbicide agents, so long as it manifests to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.309(e). The results of the April 2017 VA examination show a compensable cardiac disability under the rating criteria. Based on the above analysis, the Board grants the Veteran’s appeal seeking entitlement to service connection for a cardiac disability, as the evidence establishes that he has been diagnosed with coronary artery disease within the appellate period, which is presumed to have been caused by his in-service exposure to herbicide agents. 3. Entitlement to a noninitial disability rating in excess of 20 percent for service-connected type II diabetes mellitus is denied. The Veteran has been in receipt of a 20 percent rating for the entire appellate period under Diagnostic Code 7913, 38 C.F.R. § 4.119. The Veteran seeks a higher noninitial disability rating on appeal. Type II diabetes mellitus is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. While this diagnostic code has remained in effect since December 10, 2009, VA revised the portion of the Rating Schedule that addresses endocrine conditions and disorders of the endocrine system, effective December 10, 2017. See 82 Fed. Reg. 50802 (Nov. 2, 2017). Since the goal of the revisions was to ensure that VA’s Schedule for Rating Disabilities used current medical terminology and to provide detailed and updated criteria for evaluation of endocrine disorders, revisions were merely clarifying in nature. See id. With regard to Diagnostic Code 7913, the revision added the phrase “one or more daily injection of” before the word “insulin.” Therefore, under the revised criteria, a rating of 10 percent is assigned for diabetes mellitus that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes mellitus requiring one or more daily injections of insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned for diabetes mellitus requiring one or more daily injections of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the disability requires one or more daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is warranted where the diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Veteran attended a VA examination in October 2010 to assess the severity of his service-connected type II diabetes mellitus. The VA examiner found no episodes of hypoglycemic reactions or ketoacidosis. The Veteran was instructed to follow a restricted or special diet. The Veteran was not restricted in his ability to perform strenuous activities. The Veteran had no diabetic skin abnormalities. The VA examiner noted microalbuminuria, but no peripheral edema. The Veteran attended another VA examination in January 2015 to assess the severity of his service-connected type II diabetes mellitus. The VA examiner stated that the Veteran’s type II diabetes mellitus was managed by restricted diet, the use of prescription oral hypoglycemic agents, and the use of other medications, such as Metformin and Januvia. The examiner stated the Veteran’s fasting salivary glucose levels were between 140 and 170. The VA examiner stated that the Veteran required regulation of activities as part of the medical management of his diabetes mellitus. When asked to explain and provide one or more examples of how the Veteran must regulate his or her activities, the VA examiner stated the Veteran gets hypoglycemia ~q3mo. The VA examiner stated that the Veteran visited his provider less than 2 times per month for episodes of hypoglycemia or ketoacidosis. The Veteran had not been hospitalized over the previous 12 months for hypoglycemic reactions or ketoacidosis. The Veteran did not experience progressive unintentional weight loss or loss of strength due to his diabetes mellitus. The Veteran underwent a final VA examination in July 2019 to assess the severity of his service-connected type II diabetes mellitus. It was noted that the condition was managed by restricted diet, the use of prescribed oral hypoglycemic agents, and other medication, such as Metformin and Dulaglutide injections. The Veteran’s fasting salivary glucose levels were 50 to 100. The Veteran did not require regulation of activities as part of medical management for his diabetes mellitus. The VA examiner stated that the Veteran visited his provider less than 2 times per month for episodes of hypoglycemia or ketoacidosis. The Veteran had not been hospitalized over the previous 12 months for hypoglycemic reactions or ketoacidosis. The VA examiner stated that the Veteran had progressive unintentional weight loss and loss of strength due to diabetes mellitus. The Veteran’s private and VA treatment records show that his type II diabetes mellitus has been primarily controlled and medically managed with a restricted diet and oral hypoglycemic agent throughout the appellate period. The Veteran has had variable use of injective insulin, with greater frequency of daily insulin injections being prescribed later in the appellate period. The Veteran’s private and VA treatment records do not show that the Veteran’s diabetes mellitus requires regulation of activities, defined as avoidance of strenuous occupational and recreational activities. The Board now turns to whether the Veteran’s service-connected type II diabetes mellitus has required insulin, restricted diet, and regulation of activities sufficient to warrant a higher 40 percent rating during the appellate period. Use of the conjunctive “and” in the 40 percent rating criteria for Diagnostic Code 7913 necessitates that the Veteran satisfy all three elements before such a rating is warranted. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Here, the evidence is clear that the Veteran’s service-connected type II diabetes mellitus is primarily regulated through the daily use oral hypoglycemic agent and restricted diet. However, there is no compelling medical evidence proving that the Veteran’s type II diabetes mellitus is so severe that it requires regulation of activities. “Regulation of activities” is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). While the January 2015 VA examiner stated that the Veteran’s diabetes mellitus required regulation of activities, he did not provide an example of how the Veteran must regulate his activities, but instead, he simply noted that the Veteran suffered from periodic hypoglycemia. This explanation does not satisfy the definition of regulation of activities in the rating criteria, and as such, this finding by the January 2015 VA examiner is not probative in this appeal. As correctly noted in the August 2018 Supplemental Statement of the Case, the phrase “regulation of activities” refers to avoidance of strenuous occupational and recreational activities with the intention to avoid hypoglycemic episodes; it is not the need to schedule meals or the recommendation for exercise. At the July 2019 VA examination, the VA examiner determined that regulation of activities was not part of the Veteran’s medical management for his diabetes mellitus. In correspondence received in August 2020, the Veteran’s attorney submitted an article from the Mayo Clinic stating that exercise is an important part of any diabetes treatment plan, as well as a Mayo Clinic article discussing hypoglycemia. He then argued that “[t]o assert [that the] Veteran’s condition does not require [him] to regulate his activities is preposterous.” Instead of citing to medical evidence from the Veteran’s treatment records documenting that the Veteran has been explicitly told by his treatment providers that his diabetes mellitus requires the avoidance of strenuous occupational and recreational activities, the Veteran’s attorney has chosen to rely on general articles discussing the benefits of physical exercise in managing diabetes mellitus and the need for diabetics to monitor their blood sugar levels when eating or exercising. Again, counsel is reminded that the recommendation for exercise or meal planning do not satisfy the regulatory definition of regulation of activities. Additionally, these general medical articles, unaccompanied by any medical opinion linking their conclusions to the Veteran’s specific medical circumstances are of little probative value. Based on the attorney’s basic misunderstanding of the regulatory definition of “regulation of activities,” the attorney argued that the VA examiners were not competent to assess the severity of the Veteran’s diabetes mellitus based on his unsupported allegation that they “do[] not appear to have a full understanding of the consequences of diabetes.” While the Board has afforded the January 2015 VA examiner’s finding on regulation of activities to have little probative value—as it was based on the same misunderstanding of the phrase “regulation of activities” advanced by counsel—there is no indication in the record that the October 2010, January 2015, or July 2019 VA examiners were not competent to assess the severity of the Veteran’s type II diabetes mellitus. These examinations were conducted by VA examiners with PA-C degrees, meaning they are certified physicians’ assistants. To assert that the VA examiners lack any particular training or competency completely disregards the VA examiners’ education and training in the practice of medicine. Physicians’ assistants are trained in the general practice of medicine, and their practice covers a wide variety of acute and chronic illnesses. Type II diabetes mellitus is a common medical condition often first evaluated and treated by physicians’ assistants. The attorney has not articulated how a physicians’ assistant who commonly treats general medical conditions such as diabetes mellitus lacks the knowledge and expertise to assess the severity of the Veteran’s diabetes mellitus. Additionally, the attorney has not explained why the Veteran’s disability is so medically complicated as to warrant evaluation by a medical specialist. The Veteran has challenged the competency of the relevant VA examiners based on training and expertise, and in accord with the analysis above, the Board has rebutted such allegations. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Board finds no merit in the attorney’s argument. The electronic claims file is devoid of any probative medical evidence proving the Veteran’s physicians have ever instructed the Veteran to avoid strenuous occupational and recreational activities due to his type II diabetes mellitus; and the July 2019 VA examiner found that regulation of activities was not part of the Veteran’s medical management for type II diabetes mellitus. Having failed to establish that his service-connected type II diabetes mellitus has required regulation of activities within the appellate period, the Veteran is not entitled to a 40 percent evaluation. As the higher 60 and 100 percent rating criteria also require medical evidence of regulation of activities, among other factors, the Veteran cannot achieve these higher ratings. Consequently, the Board finds that a noninitial evaluation in excess of 20 percent is not warranted for the Veteran’s service-connected type II diabetes mellitus, and his appeal is denied. REASONS FOR REMAND 1. Petition to reopen entitlement to service connection for Parkinson’s disease (now characterized as essential tremor) is remanded. In September 2011, the RO issued a rating decision denying entitlement to service connection for Parkinson’s disease due to the lack of a current disability that was etiologically or presumptively related to the Veteran’s active duty service, to include his presumed exposure to herbicide agents. The Veteran’s attorney filed a timely Notice of Disagreement in June 2012. The RO issued a Statement of the Case readjudicating the matter in October 2012. The Veteran did not file a timely VA form 9, Substantive Appeal, or a document with the requisite information, within 60 days of the mailing of the Statement of the Case. In fact, in correspondence received in November 2012, the Veteran’s attorney indicated that the Veteran wished to withdraw the claim. Seemingly, the September 2011 rating decision became final as to this issue. 38 C.F.R. §§ 19.52 (formerly 20.302), 20.1103. Since the prior disallowance, the Veteran has raised an additional theory of entitlement and has alleged that his claimed Parkinson’s disease is secondary to his service-connected type II diabetes mellitus. He has submitted an article stating that physical tremors may be heightened by hypoglycemia. In July 2017, the RO issued a rating decision denying entitlement to service connection for Parkinson’s disease due to the lack of a current disability. The RO noted that the Veteran had been diagnosed with essential tremor, not Parkinson’s disease, and denied the claim on this basis. This action constituted legal error, as the RO should have recharacterized the claim as one seeking entitlement to service connection for essential tremor pursuant to Clemons. The Veteran has never been formally diagnosed with Parkinson’s disease, and essential tremor is not one of the explicitly listed enumerated conditions found in 38 C.F.R. § 3.309(e) as presumptively caused by in-service herbicide agent exposure. However, effective January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 added Parkinsonism to 38 U.S.C. § 1116(a)(2) as a condition presumed to be caused by in-service herbicide agent exposure. The regulations have not been updated yet to reflect this change in the statutory law. While the Veteran’s current claim is the same as the one decided in the September 2011 rating decision, the Board declines to engage in a new and material evidence analysis at this juncture, as a remand is required for a medical opinion addressing whether the Veteran’s essential tremor constitutes Parkinsonism for the purposes of applying the presumptive service connection principles under 38 U.S.C. § 1116. If it is determined that the Veteran’s disability qualifies as Parkinsonism, a new and material evidence analysis shall not be required, as the United States Court of Appeals for Veterans Claims (Court) has held that amendments creating presumptive service connection for diseases constitute liberalizing acts, which require the claim to be reconsidered on a de novo basis. See Spencer v. Brown, 4 Vet. App. 283, 287 (1993), aff’d, 17 F.3d 368 (Fed. Cir. 1994) (recognizing as a liberalizing law “a provision of law or regulation creates a new basis for entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit.”). If it is determined that the Veteran’s essential tremor does not qualify as Parkinsonism, the Veteran may still achieve service connection with evidence showing that his in-service herbicide agent exposure directly caused his essential tremors. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Additionally, the Veteran has submitted evidence indicating a potential link between essential tremor and his service-connected type II diabetes mellitus. Accordingly, the RO is requested to obtain a VA medical opinion addressing these theories of entitlement. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. In a September 2018 decision, the Board denied entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran perfected a timely appeal to the Court. In June 2019, the Veteran and VA (the parties) agreed to a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision on the claim and remanding the matter back to the Board for readjudication consistent with the terms of the JMPR. The Court granted the JMPR in July 2019. In the JMPR, the parties agreed that the Board erred when it failed to ensure compliance with its prior remand directives as required by Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2014, the Board remanded the claim because prior VA medical opinions failed to consider the Veteran’s psychiatric complaints in 1984, but the Board failed to request that the VA examiner explicitly comment on the 1984 complaints. Thus, when the Board relied on the newly obtained February 2015 VA medical opinion in the September 2018 Board decision, the Board erred because the opinion similarly did not discuss the Veteran’s psychiatric complaints from 1984. The parties directed the Board to provide the Veteran with a new VA psychiatric examination, with instructions that the examiner consider the 1984 psychiatric complaints when rendering an opinion. As such, the claim is remanded in accordance with the directions issued in the JMPR. In assessing the presence of PTSD, the VA examiner shall be requested to use the DSM-IV criteria, as the claim was certified to the Board prior to August 4, 2014. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014) (interim final rule); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final rule) (providing that for claims that were initially certified for appeal to the Board, the Court, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, DSM-IV will apply. For all applications for benefits received by VA or pending before the agency of original jurisdiction on or after August 4, 2014, DSM-5 will apply). 3. Entitlement to a TDIU is remanded. In August 2019, the RO adjudicated a claim of entitlement to a TDIU. In December 2019, the Veteran filed VA form 20-0996, Decision Review Request: Higher-Level Review. The RO issued a Higher-Level Review rating decision in March 2020 again denying the claim. Despite these adjudications of a TDIU claim in the modernized appeal system, the law still requires the Board to address whether an inferred claim of entitlement to a TDIU has been raised in conjunction with the pending increased rating claims under Rice v. Shinseki, 22 Vet. App. 447 (2009). During the appellate period, the Veteran has alleged that his type II diabetes mellitus contributed to his perceived individual unemployability. Thus, the Board shall raise an inferred claim of entitlement to a TDIU. Since the Veteran’s claim seeking service connection for Parkinson’s disease (now characterized as essential tremor) remains outstanding, the impact of which may affect the Veteran’s eligibility for a TDIU, the Board shall remand the Veteran’s claim seeking entitlement to a TDIU as inextricably intertwined with the Veteran’s claim seeking entitlement to service connection for Parkinson’s disease (now characterized as essential tremor). See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 4. Claims remanded pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the claims seeking an earlier effective date and higher initial ratings for the Veteran’s left and right lower extremity diabetic neuropathy, hypertension, and gout, the Board notes that the Veteran filed a timely VA form 21-0958, Notice of Disagreement, in August 2018 following the determinations rendered in an August 2018 rating decision. The RO has not issued a Statement of the Case on these claims. As the timely Notice of Disagreement placed these claims in appellate status, these matters must be remanded to the RO for issuance of a Statement of the Case. See Manlincon, 12 Vet. App. at 240-241. The procedural history regarding the Veteran’s claims involving diabetic nephropathy is more complicated. In an August 2018 rating decision, the RO granted a separate noncompensable rating for the Veteran’s diabetic nephropathy, effective January 21, 2015. The Veteran filed a timely Notice of Disagreement in August 2018 challenging the effective date of the award for a separate rating and the initial noncompensable rating assigned. The RO has not issued a Statement of the Case addressing these issues, and as such, they are remanded for issuance of the Statement of the Case in accordance with Manlincon, supra. In October 2018, the RO issued a rating decision granting a higher 60 percent rating for the Veteran’s diabetic nephropathy, effective July 15, 2016. The Veteran filed a timely Notice of Disagreement challenging the date the RO chose to assign the higher 60 percent rating and requesting a higher disability rating. The RO issued a Statement of the Case, and the Veteran perfected an appeal to the Board through the filing of the February 2020 VA form 9, Substantive Appeal. In this Statement of the Case, the RO denied the Veteran’s request for a 60 percent prior to July 15, 2016 and his request for a higher rating. The Statement of the Case did not address the other issues raised by the Veteran’s August 2018 Notice of Disagreement regarding his diabetic nephropathy. The Board finds that the claims perfected by the February 2020 VA form 9, Substantive Appeal, regarding diabetic nephropathy must be remanded as inextricably intertwined with the claims seeking entitlement to an effective date earlier than January 21, 2015 for the award of a separate rating for diabetic nephropathy and an initial compensable rating prior to July 15, 2016. See Harris, supra. This is because the RO’s adjudication of the proper date for the award of a separate rating for the Veteran’s diabetic nephropathy impacts the period on appeal for the increased rating claims, to include entitlement to a 60 percent rating prior to July 15, 2016. Furthermore, principles of efficiency weigh against piecemeal adjudication. See e.g. Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (piecemeal litigation is to be avoided as it adds confusion and wastes judicial resources). Accordingly, these claims are remanded for readjudication concurrent with the claims seeking entitlement to an effective date earlier than January 21, 2015 for the award of a separate rating for diabetic nephropathy and a higher initial rating. Lastly, the RO is requested to obtain any outstanding VA treatment records from April 2020 to present and associate them with the Veteran’s electronic claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. Schedule the Veteran for a VA examination with an appropriate VA examiner to assess the nature and etiology of his essential tremor diagnosis. Following a complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s essential tremor qualifies as Parkinsonism for the purposes of applying the presumptive service connection provisions? Why or why not? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s essential tremor is etiologically related to his active duty service, to include his in-service exposure to herbicide agents? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s essential tremor is proximately due to, the result of, or aggravated by the Veteran’s service-connected type II diabetes mellitus? In forming a conclusion, the VA examiner is requested to address the article submitted by the Veteran indicating that physiologic tremor is heightened by hypoglycemia. 3. Schedule the Veteran for a VA examination with an appropriate VA examiner to assess the nature and etiology of his claimed acquired psychiatric disability, to include PTSD. Following a complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Does the Veteran have a diagnosis of PTSD under the DSM-IV? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current acquired psychiatric disability is etiologically related to his active duty service? In forming an opinion, the VA examiner is requested to expressly address the September 1984 notations indicating the Veteran suffered from occasional episodes of depression. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disability is proximately due to, the result of, or aggravated by any of the Veteran’s service-connected disabilities? 4. The RO is requested to ensure that the VA examiners’ responses to directive 2(c) and 3(c) comply with the Court’s decision in Ward v. Wilkie, 31 Vet. App. 233(2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. The RO is also requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the respective VA examiner’s medical expertise; the VA examiner’s clinical experience; current medical principles; and citations to the record, as appropriate. 5. The RO should furnish the Veteran with a Statement of the Case on the issues of entitlement to (1) an effective date earlier than January 21, 2015 for the award of a separate compensable rating for the Veteran’s diabetic neuropathy of the right lower extremity; (2) an initial disability rating in excess of 10 percent prior to June 27, 2018, and in excess of 40 percent thereafter, for the Veteran’s diabetic neuropathy of the right lower extremity; (3) an effective date earlier than January 21, 2015 for the award of a separate compensable rating for the Veteran’s diabetic neuropathy of the left lower extremity; (4) an initial disability rating in excess of 10 percent prior to June 27, 2018, and in excess of 20 percent thereafter, for the Veteran’s diabetic neuropathy of the left lower extremity; (5) an effective date earlier than August 4, 2010, and an initial compensable rating, for the Veteran’s service-connected hypertension; (6) an effective date earlier than November 22, 2010, and an initial compensable rating, for the Veteran’s service-connected gout; (7) an effective date earlier than January 21, 2015 for the award of a separate rating for the Veteran’s diabetic nephropathy; and (8) an initial compensable rating prior to July 15, 2016, and in excess of 60 percent thereafter, for the Veteran’s diabetic nephropathy, to include entitlement to an earlier effective date for the higher 60 percent rating. The RO is cautioned that the Veteran has already perfected an appeal on the issue of entitlement to an effective date earlier than July 15, 2016 for the 60 percent rating for the Veteran’s diabetic nephropathy, and entitlement to an initial disability rating in excess of 60 percent for the Veteran’s diabetic nephropathy since July 15, 2016. For the sake of efficiency and clarity, the Board has collapsed these claims into the claims seeking entitlement to an effective date earlier than January 21, 2015 for the award of a separate rating for diabetic nephropathy and entitlement to an initial compensable rating prior to July 15, 2016 for the Veteran’s diabetic nephropathy. [Continued on Next Page]   6. Readjudicate the Veteran’s petition to reopen entitlement to service connection for Parkinson’s disease (now characterized as essential tremor), as well as his claims seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD, and entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Galante, Mathew 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.