Citation Nr: 21004270 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-34 379 DATE: January 26, 2021 ORDER Entitlement to an increased rating of 100 percent for coronary artery disease (CAD) is granted as of January 30, 2017. Entitlement to an increased rating in excess of 20 percent for diabetes is denied. Entitlement to an increased rating in excess of 10 percent for status post bilateral cataracts removal with diabetic retinopathy (bilateral eye disability) is denied. Entitlement to a compensable rating for erectile dysfunction is denied. Entitlement to service connection for melanoma is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for depression (claimed as mental health condition) is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an earlier effective date for service connection for a bilateral eye disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s chronic congestive heart failure became factually ascertainable on January 30, 2017. 2. At no time during the period on appeal did the Veteran’s diabetes require prescribed regulation of activities. 3. The Veteran’s bilateral eye disability did not manifest in incapacitating episodes or a more severe visual impairment to warrant a 20 percent rating. 4. The Veteran’s service-connected erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. 5. The preponderance of the evidence of record is against finding that the Veteran has had melanoma at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence of record is against finding that the Veteran has had peripheral neuropathy of the bilateral lower extremities at any time during or approximate to the pendency of the claim. 7. The preponderance of the evidence shows the Veteran’s depression is at least as likely as not related to his service-connected disabilities. 8. The preponderance of the evidence is against finding that the Veteran’s back pain began during active service or is otherwise related to an in-service injury or disease. 9. The preponderance of the evidence is against finding that the Veteran’s sleep apnea began during active service or is otherwise related to an in-service injury or disease. 10. The Veteran submitted an Intent to File for service connection for his bilateral eye disability on May 1, 2017. 11. From January 30, 2017, the Veteran has a schedular rating of 100 percent for service connected heart disease rendering his TDIU claim moot as of that date because his TDIU claim is premised on the combined effects of all his disabilities and, in any case, largely premised on his heart disease manifestations (which is rated 100 percent disabling, effective January 30, 2017). 12. Prior to January 30, 2017, the evidence of record does not establish that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during the applicable appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 100 percent for CAD have been met as of January 30, 2017, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 3. The criteria for an increased rating in excess of 10 percent for a bilateral eye disability are not met. 38 U.S.C. §§ 1155 ;38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.25, 4.76, 4.79, Diagnostic Codes 6066 and 6080. 4. The criteria for a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, Diagnostic Code 7522. 5. The criteria for service connection for melanoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for depression as secondary to the Veteran’s service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The Veteran is not entitled to an earlier effective date for the grant of service connection for a bilateral eye disability. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.400. 11. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to December 1986, to include service in Vietnam. These matters are on appeal to the Board of Veterans’ Appeals (Board) following a June 2019 Board decision remanding the claims for issuance of an SOC. An SOC was issued in September 2019; thus, the remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board issued a decision on the above issues on July 14, 2020. However, as there was a pending 90-day extension request at the time of the issuance of the decision, the decision was subsequently vacated pursuant to 38 U.S.C. § 7104 (a) and 38 C.F.R. § 20.904. Accordingly, the Board will review the issues considering the new evidence of record on a de novo basis. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, for the non-initial increased rating claims, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assignment. The Veteran filed his claim for increased ratings on May 1, 2017. Therefore, the appeal period begins May 1, 2016. The Veteran's bilateral eye disability increased rating claim is initial. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board will consider the evidence as of May 1, 2017. 1. Entitlement to an increased rating of 100 percent for CAD is granted effective January 30, 2017, but no earlier. The Veteran filed a claim seeking an increased rating for, among other things, his CAD on May 31, 2017. His disability rating was increased to 100 percent effective January 3, 2019 in a September 2020 rating decision. Entitlement to an increased rating prior to January 3, 2019 remains on appeal to the Board. Pursuant to Diagnostic Code 7005 for CAD, a 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is warranted when there is chronic congestive heart failure, or; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Thus, the essential question is whether the Veteran became entitled to a 100 percent rating prior to January 3, 2019. The date entitlement arose is generally the date when entitlement is factually ascertainable. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). On January 31, 2019 his cardiologist, Dr. M, drafted a statement explaining that the Veteran was hospitalized at Seton Medical Center on January 3, 2019 for respiratory insufficiency and was documented to have a non-ST elevated MI. He underwent a cardiac catheterization showing significant CAD with a reduced ejection fraction of 25-29 percent. This statement was received by VA on March 3, 2019. Seton Medical Center records subsequently associated with the claims file confirm the hospitalization and cardiac findings. However, the treatment records establish the Veteran was first diagnosed with chronic heart failure by Dr. M on January 30, 2017. On that date, this was noted to be a new problem. Indeed, during a December 2016 treatment visit for CAD, the Veteran denied symptoms of angina, heart failure, and stroke. The Board notes that the July 2017 VA examination for the Veteran’s CAD indicates the Veteran does not have congestive heart failure. However, no records were reviewed for that examination; it was a physical examination only. In contrast, Dr. M based his diagnosis on the results of a January 5, 2017 echocardiogram. Therefore, the Board affords the January 30, 2017 treatment visit and diagnosis more probative weight than the July 2017 VA examination. Thus, based on the evidence, entitlement to a 100 percent rating for CAD became factually ascertainable on January 30, 2017, but no earlier. 2. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is denied. Under Diagnostic Code 7913, a 10 percent evaluation is warranted when diabetes mellitus, type II, is manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, 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 100 percent rating is warranted for diabetes mellitus requiring 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. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The criteria for a rating in excess of 20 percent for diabetes mellitus necessitate a requirement of “regulation of activities.” This is so for the 40, 60, and 100 percent evaluations. With respect to a 40 percent rating, the Court has held that all the criteria must be met given the clearly conjunctive structure of the language used in Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of Diagnostic Code 7913 for diabetes mellitus with the non-successive Diagnostic Code 7903 for hypothyroidism). Additionally, “regulation of activities” is defined in Diagnostic Code 7913 as “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to support the “regulation of activities” criterion. See Camacho, 21 Vet. App. at 364; 38 C.F.R. § 4.119, Diagnostic Code 7913. The records reflect that the Veteran is treated for his diabetes with insulin and restriction of diet; however, there is no indication that his treatment regimen includes regulation of activities. In his July 2017 VA examination, the examiner indicated that the Veteran’s activities were not restricted. In fact, several of the treatment records expressly encourage the Veteran to be more active. In an August 2017 record, lack of exercise was noted to be an exacerbating factor to the Veteran’s diabetes. During his January 2019 hospitalization, the medical notes recommended the Veteran stay on his insulin regimen in addition to his dietary regimen. Thus, given that a restriction of activities is required for a higher rating, the Veteran’s claim must be denied. 3. Entitlement to an increased rating in excess of 10 percent for a bilateral eye disability is denied. The Veteran was recently granted service connection for his eye disabilities rated at 10 percent; he seeks an increased rating. With respect to field of vision impairment, 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500. The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes. 38 C.F.R. § 4.76a. Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees unilaterally. A30 percent evaluation is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual filed bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual field defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction). 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. 38 C.F.R. § 4.76 (b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. A 50 percent disability rating is warranted (1) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/70; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50. A 60 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/100; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/200; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200. An 80 percent disability rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200. A 90 percent disability rating is warranted only (1) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 10/200; (3) when vision in one eye is no more than light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200. A 100 percent disability rating is warranted only (1) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 5/200; (2) when vision in one eye is no more than light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is no more than light perception in both eyes; or (5) when there is anatomical loss of both eyes. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of § 4.25.38 C.F.R. § 4.77 (c). The Veteran underwent a VA examination for his vision in July 2017. He was diagnosed with non-proliferative diabetic retinopathy without edema and bilateral cataracts for which he had undergone surgical removal. His corrected distance visual acuity was 20/40 or better in both eyes. The examiner found he had no incapacitating episodes. Goldmann testing was also conducted at this examination. The Veteran’s results for the left eye were as follows: 75 degrees temporally; 65 degrees down temporally; 55 degrees down; 50 degrees down nasally; 50 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The total remaining visual field for the left eye was 450, with an average contraction to 56.25 degrees. The Veteran’s results for the right eye were as follows: 75 degrees temporally; 65 degrees down temporally; 60 degrees down; 45 degrees down nasally; 55 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The total remaining visual field for the right eye was 455, with an average contraction to 56.875 degrees. Bilateral concentric contraction with an average field of 46 to 60 degrees warrants a 10 percent rating. His visual acuity warrants a noncompensable rating. Thus, the Veteran is entitled to a 10 percent rating, but no higher. The Board has reviewed the Veteran’s treatment records. Treatment records within the appeal period are inconsistent as to whether he has diabetic retinopathy, but nonetheless do not indicate more severe visual impairment. The Board has also considered other potentially applicable diagnostic codes. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye.89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The Board must rate eye disabilities on either visual impairment or the General Rating Table, whichever provides for the higher rating. It is noted that the definition of incapacitating episodes was changed in the amendment, with the former criteria defining them as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other health care provider and the revised criteria defining them as an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, with further elaboration of the types of treatment it exemplifies. The record does not reflect incapacitating episodes under either definition during the appeal period. Thus, as no other diagnostic codes are applicable, the Veteran’s claim is denied. 4. Entitlement to a compensable rating for erectile dysfunction is denied. Diagnostic Code 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. There is no schedular rating for loss of erectile power alone. While Diagnostic Code 7522 requires a “deformity” for a compensable rating and VA has not expressly defined this term, the United States Court of Appeals for Veterans Claims (Court) has found that the ordinary meaning of this word is appropriate, noting that a “deformity” is a “distortion of any part or general disfigurement of the body.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012). The Court held that “deformity” under DC 7522 means a distortion of the penis, either internal or external. 38 C.F.R. § 4.115 (b), Diagnostic Code 7522. See Williams v. Wilkie, 30 Vet. App. 134 (2018). The record does not reflect a penile deformity. In his July 2017 examination, the Veteran was expressly noted to have a normal penis. While the treatment records reflect the diagnosis, none indicate a deformity. Thus, as penile deformity is required for a higher rating, the Veteran’s claim must be denied. Service Connection In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In reaching a decision on all issues, the Board has considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for melanoma is denied. The Veteran filed a claim for service connection for melanoma in May 2017. The records do not reflect a current diagnosis of melanoma; however, there is an April 2017 treatment record that reflects a complaint of moles on the Veteran’s back for the previous 5 months. He was referred to dermatology. An April 2018 VA treatment record reflects a history of melanoma removed from the upper back, and that he is followed by outside dermatology. An April 2001 record indicates the Veteran had a “peculiar aggressive-looking mole” on his right shoulder that was removed and turned out to be a benign nevus but had some features of a malignant melanoma. The Veteran was sent a development letter in August 2020 requesting authorization and release from the Veteran for VA to obtain any pertinent private dermatology records. To date, no response has been received. Thus, the Veteran has been provided opportunity to provide us with pertinent information regarding his claim. As the evidence of record provides no indication of a current diagnosis of melanoma or other similar skin condition throughout the appeal period, the Veteran’s claim must be denied. 6. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. The Veteran filed for service connection for peripheral neuropathy of the lower extremities in May 2017. Upon review of the evidence, a March 2007 record shows microalbuminuria “likely secondary to early diabetic neuropathy.” There is no further mention of neuropathy until a May 2016 medical record reflecting pain in the right lower extremity. The differential included osteoarthritis, neuropathy, or peripheral artery disease (PAD). A diagnosis of peripheral artery disease was later confirmed in January 2019. In a July 2017 VA examination, no neuropathy was found upon examination. An August 2017 medical review of the Veteran’s health history and medications, the box next to diabetic neuropathy was checked. During his January 2019 hospitalization, no neuropathy was reported. While the record reflects sporadic indications of possible neuropathy, there are no objective findings of neuropathy upon examination. The findings of the July 2017 VA examination and January 2019 hospital records are particularly probative. The VA examination provided a thorough physical examination and identification of the Veteran’s secondary disabilities due to diabetes. The extended January 2019 hospitalization provided a thorough work-up of the Veteran’s disabilities. As the hospital records contain extensive reports of the Veteran’s overall health, to include the current severity of his diabetes and cardiopulmonary health, the Board finds the lack of findings of diabetic neuropathy, to include the expressed indication that there was none, to be highly probative. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of medical condition or symptoms in a service medical record where such notation would normally be expected). Thus, the most probative evidence of record weighs against a finding of diabetic neuropathy. As there is no evidence of a current diagnosis, the Veteran’s claim is denied. 7. Entitlement to service connection for depression is granted. The Veteran filed a claim for a “mental health condition” in May 2017. The records reflect a diagnosis of depression since the early 2000s for which he has consistently taken medication. In the August 2020 brief submitted by the Veteran’s attorney, it is contended that the Veteran’s depression is caused or aggravated by his service-connected CAD and diabetes. In an April 2020 Disability Benefits Questionnaire drafted by a private psychologist, Dr. B, the Veteran’s listed DSM V diagnosis was unspecified depressive disorder. She wrote the Veteran expressed several ways his service-connected CAD and diabetes influence his mental health. For example, his chronic pain and low strength and energy due to his disabilities cause him to be irritable and depressed about his limitations. Dr. S concluded the Veteran’s symptoms are consistent with a diagnosis of unspecified depressive disorder and it is more likely than not caused by his CAD and diabetes. As the examiner supported her conclusion with adequate rationale, the Board finds it probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. At 295 (2008). Further, there is no contrary medical opinion. The Veteran’s daughter submitted a statement in November 2019. She explained that her father’s CAD causes him to fatigue easily and sleep often. Doing any physical activity drains him of energy. He suffers from chronic pain due to chest pain and heart burn, and he experiences dizziness and is easily confused. These limitations cause him to be frequently frustrated. She explained he lacks motivation, does not enjoy activities and hobbies that he used to, and socially isolates himself. The Veteran’s stepson also submitted a statement in November 2019. He explained the Veteran is constantly exhausted and spends most of his time on the couch. He experiences dizziness and heartburn. Because he is unable to be active and must be reliant on others at times, he has become withdrawn, isolated, and depressed. The Veteran’s children are competent to opine on personally observable symptomatology, and the Board has no reason to question the veracity or credibility of their statements. Thus, the Board finds the lay statements highly probative. The Board finds the criteria for service connection on a secondary basis have been met. The Veteran has a diagnosis of depression, and both medical and lay evidence establish it is caused by his service-connected disabilities of CAD and diabetes. The Veteran’s claim for service connection for depression secondary to CAD and diabetes is granted. 8. Entitlement to service connection for a back disability is denied. The Veteran contends his back pain is due to an injury that occurred in service. In his May 2017 claim, he explained that he fell from an icy deck while stationed in Germany and landed on his back. According to the Veteran, a medic examined his back, and told him to rest and use ice packs. Upon return to the main duty station, the medic reported the fall to the hospital where the Veteran was examined and released with pain pills. The Veteran’s service treatment records do indicate that the Veteran slipped in Germany in 1971, but the records do not confirm a back injury at that time. Rather, at that time, he was only treated for a laceration on the top of his head. His service treatment records are silent as to any complaints, treatment, or diagnoses related to the low back. In fact, on his separation examination, he indicated “no” to recurrent back pain. After service, moreover, the evidence does not reflect a specific diagnosis of a back disability. A June 2003 record notes a back injury following a motor vehicle accident but provides no diagnosis or treatment. A May 2016 record indicates low back pain for over a year. The assessment was low back pain and he was prescribed narcotics. A December 2016 treatment record reflects a complaint of lower back pain for the prior 3 weeks. The Veteran was prescribed narcotics. An April 2017 record also indicates low back pain. Upon examination, tenderness was indicated with normal range of motion, muscle strength, and no subluxations present. The assessment was low back pain, and he was again prescribed narcotics. A September 2017 record indicates pain in the lower back. Pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), pain that results in a functional impairment in earning capacity can be considered a current disability for VA compensation purposes. In an April 2020 private medical opinion drafted by Dr. E, he explains that according to the Veteran, he quit working in 2002 due to his back. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds this constitutes a functional impairment in earning capacity and can be considered a current disability for VA purposes. However, the Veteran’s claim must still fail for a lack of nexus. That is, there is no indication that the Veteran’s back pain is related to an in-service injury or incident. Despite the Veteran’s description of in-service injury, there is no such confirmation of such injury in his service treatment records and, indeed, evidence to the contrary. Again, while the Veteran’s slip-and-fall injury is noted in his military records, the only injury at the time was a laceration to the head. The Veteran specifically denied any back problems at the time of separation. See Buczynski, 24 Vet. App. at 224 (the Board may consider a lack of notation of medical condition or symptoms in a service medical record where such notation would normally be expected). Also compelling, the first mention of back pain in the Veteran’s post-service treatment records attribute it to a 2002 motor vehicle accident. Thus, the Board does not find the Veteran’s testimony credible in this regard as it is in contradiction with other evidence of record. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff’d per curium,78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). There is no other evidence of record indicating an in-service incurrence or a nexus that would trigger the duty to provide a VA examination. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran’s claim must be denied. 9. Entitlement to service connection for sleep apnea is denied. The Veteran’s medical records reflect very little mention of sleep apnea; however, a December 2013 record lists sleep apnea, untreated under the assessment. An August 2014 record reflects an encouragement for the Veteran to have his sleep apnea treated. A February 2015 record indicates sleep apnea intermittently treated with continuous positive airway pressure. A November 2016 record shows the Veteran denied sleep apnea, and April and August 2017 records do not indicate sleep apnea. A December 2018 record states the Veteran had an overnight sleep study years ago demonstrating sleep apnea. When the Veteran was hospitalized in January 2019, sleep apnea is indicated in the records, and he begins using a CPAP machine in the hospital as his daughter was unable to find one in his home. Thus, although inconsistent, the preponderance of the evidence indicates that the Veteran has a diagnosis of sleep apnea. However, there is no credible evidence that the Veteran’s sleep apnea is related to service. Indeed, his service treatment records are silent for any complaints, treatment, or diagnoses related to sleep apnea. The first mention of sleep apnea is decades after service. There is no other evidence of record indicating an in-service incurrence or a nexus that would trigger the duty to provide a VA examination. See Bardwell, 24 Vet. App. 36. The Veteran’s claim must be denied. 10. Entitlement to an effective date earlier than May 1, 2017, for service connection for bilateral cataracts is denied. The Veteran contends that the grant of service connection for his bilateral eye disability should be earlier than May 1, 2017. The Board finds no basis to award an effective date earlier than May 1, 2017. In general, the effective date of the initial grant of service connection (unless a claim was filed within a year of separation from service), shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Veteran submitted his Intent to File on May 1, 2017 and submitted his formal claim on May 31, 2017. The current effective date is May 1, 2017, which is the earliest allowable date under this general provision. For increased ratings, however, the effective date of an award may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within the prior year. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(1)-(2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board considered this provision as the Veteran’s service connection grant came about in the context of an increased rating for his diabetes as it was determined to be a complication of his diabetes. The provision, however, is inapplicable here, however, where the issue in question is the appropriate effective date for the grant of service connection and not the effective date of an increased rating award. Thus, the Board is limited to the general effective date regulation, which, once again indicates the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. It is not in dispute that the Veteran submitted his Intent to File on May 1, 2017 and submitted his formal claim on May 31, 2017. There is no earlier communication that can be construed as an earlier claim and, therefore, the date the communication of intent was received, May 1, 2017, is the appropriate effective date. 11. Entitlement to a TDIU is denied. The Veteran has not filed a claim for a TDIU. However, a claim for entitlement to TDIU is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The record reasonably raises the issue of unemployability at the time of the Veteran’s May 2017 increased rating claim. As stated above, the Veteran was granted a 100 percent rating for CAD as of January 3, 2019, in a September 2020 rating decision. In this decision, the Board finds a 100 percent rating is warranted for the Veteran’s CAD as of January 30, 2017. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). That is especially true if the Veteran is in receipt of a 100 percent disability rating, but his unemployability is alleged based on an entirely separate service-connected disability. See id. That is not the case here and, therefore, here, the Veteran’s 100 percent disability rating for CAD does render his TDIU claim moot, effective January 30, 2017. That is, the Veteran’s TDIU claim is based, at least in part (if not largely), on his CAD manifestations. Thus, under these circumstances, the Board finds the Veteran’s TDIU claim is moot as of January 30, 2017. Since this claim stems from the 2017 increased rating claim, the Board has solely limited review as to whether entitlement to TDIU is warranted within the one-year period prior to the filing of his May 2017 increased rating claim. See 38 C.F.R. § 3.400(o)(2). In other words, whether TDIU is warranted from May 1, 2016. The Board finds TDIU was not factually ascertainable within the year that preceded the increased rating claim on appeal here and, therefore TDIU is denied. TDIU may be assigned where the Veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of their service-connected disabilities. The Court has held the phrase “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components; one economic and the other non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates an occupation earning more than marginal income, outside of a protected environment, as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component contemplates the veteran’s ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). In this context, appropriate factors for consideration are the Veteran’s employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. As a preliminary matter, for TDIU consideration the Veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16 (a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. As noted above, from January 30, 2017, the Veteran’s schedular rating is 100 percent. Prior to January 30, 2017, the Veteran met the TDIU threshold schedular criteria as he was service connected for coronary artery disease, rated 60 percent disabling, diabetes mellitus, type II, rated 20 percent disabling, and erectile dysfunction, rated 0 percent disabling. His combined evaluation was 70 percent. According to the Veteran’s VA Form 21-8940, he has not worked since 2002. He completed one year of college. He worked as a truck driver for several years, and also held a security position at a medical center for 3 months in 2002. He indicated he left work due to his disabilities. The medical evidence regarding the Veteran’s mental and physical limitations from May 1, 2016, to January 30, 2017, is largely absent in the record. In May 2019, the Veteran’s cardiologist, Dr. M, submitted a residual functional capacity evaluation. The document specifically requests he only consider the Veteran’s service-connected disabilities. Dr. M determined that in a normal 8 hour workday, the Veteran would only be able to stand, walk, and sit for less than 2 hours without resting. He would only be able to lift or carry less than 10 pounds. He would miss work due to medical problems 3 or more times weekly, and he would need more than 1 extra break per workday. He concluded that the Veteran would not be able to maintain substantially gainful employment. In April 2020, Dr. B, a private psychologist, provided an opinion on the Veteran’s employability due to his depression. She explained that poor interpersonal relations would prevent the Veteran from interacting well with coworkers and supervisors. Problems with concentration and memory would prevent him from learning and completing work tasks. Intrusive memories and guilt would be distracting and limit his productivity. Under workplace stress, he would be more likely to have increased suicidal ideation. She cited to empirical research that has found that mood-related work impairments are worsened by exposure to routine work stressors. She concluded that the Veteran’s depression more likely than not has prevented him from maintaining substantially gainful employment since May 1, 2017. In April 2020, a private physician, Dr. E, provided a medical opinion on the impacts of the Veteran’s service-connected disabilities on his ability to work. He opined that after reviewing all the evidence and interviewing the Veteran, it is at least as likely as not that the combination of pain and limitations (specifically, fatigue, mobility, motivation, and physical limitations) caused by his service-connected impairments prevent him from working since at least May 1, 2017 to the present. The Veteran stated he quit working in 2002 due to a nonservice-connected back disability. Since he stopped working, his heart and diabetes symptoms worsened, further causing limitation with anything physical or sedentary. The Veteran stated his heart causes him to be easily winded and fatigued, and even making his bed is exhausting. He can only complete yard work for 10-15 minutes at a time before needing a break, even with a riding lawnmower. He suffers from concentration problems, taking him much longer to complete tasks. Dr. E assessed that the Veteran would only be able to stand without leaning on anything for 15 minutes at a time. He would only be able to walk for 10 minutes, slowly and unassisted, due to his fatigue and shortness of breath. He is unable to lift or carry more than 10 pounds due to his heart. He can sit for a total of 20 minutes at time; he has shortness of breath even without activity. Any small exertional tasks fatigue him for the entire day. Because of these issues, he has difficulty concentrating and sleeps poorly. As stated above, the Veteran’s children submitted statements in 2019 describing the Veteran’s constant fatigue, exhaustion, and pain. In his July 2017 VA diabetes examination, the examiner concluded the Veteran’s diabetes would not impair his ability to work. In his July 2017 cardiac VA examination, the examiner indicated the Veteran’s CAD would impact his ability to work as he experiences dyspnea with walking and lifting. In a January 5, 2017 medical record, the Veteran reported his legs became tired after walking, and he has dyspnea on exertion with activity such as making the bed, which resolves with rest. While the Board has considered the 2019 and 2020 medical and lay evidence, both the 2020 private medical opinions only found the Veteran unemployable as of May 1, 2017. Much of the evidence described the Veteran’s disability picture following his January 2019 hospitalization, at which time the records reflect his health significantly worsened. There is simply no objective evidence that he was unable to work as a result of his service-connected disabilities from May 1, 2016 to January 29, 2017. While the Board acknowledges the July 2017 VA examination report and January 2017 medical record that the Veteran experiences dyspnea with light activity such as walking or lifting, the evidence does not show he was precluded from sedentary employment – in other words, employment that did not require physical exertion. For example, the evidence fails to show that the Veteran was precluded from maintaining employment in his previous field as a truck driver due to his service-connected disabilities. His past work experience as a truck driver also does not require frequent interaction with others, as opposed to an office setting. Altogether, in consideration of the Veteran’s educational background and previous work experience, the evidence as a whole does not show a factually ascertainable date in the year preceding his increased rating claim in which he was unemployable and, therefore, a TDIU award prior to January 30, 2017, is not warranted. See 38 C.F.R. § 3.400(o)(2). REASONS FOR REMAND Entitlement to service connection for hypertension In the vacated July 2020 Board decision, the Veteran’s claim for service connection for hypertension was remanded for a VA examination. A November 2020 SSOC denied the Veteran’s claim, stating he failed to attend a scheduled VA examination. The claims file contains a VA Form 21-2507a Request for a Physical Examination in September 2020, and a document indicating the Veteran failed to report to a scheduled examination in November 2020. However, there is no indication in the claims file that he was notified of the date and time of a scheduled examination. Accordingly, remand is required to ensure the Veteran is afforded a full and fair opportunity for a VA examination. The matter is REMANDED for the following action: (1) Ensure that the Veteran is scheduled for a VA examination in order to determine whether his hypertension is related to service or is secondary to his service-connected diabetes. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should specifically indicate whether the Veteran’s hypertension is caused or aggravated by his service-connected disabilities, or whether such is a separate and distinct disorder apart from any disability. Then, the examiner must opine whether the Veteran’s hypertension at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service. Next, if the examiner does not find that the Veteran’s hypertension is directly related to military service, the examiner must opine whether it at least as likely as not (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected diabetes. The examiner is reminded that he or she must address both prongs (a) and (b) above. (2) After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.