Citation Nr: 21063501
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 17-23 408
DATE: October 14, 2021

ORDER

Entitlement to service-connected pension benefits is dismissed.

Entitlement to an effective date prior to April 28, 2011, for erectile dysfunction (ED) is dismissed.

Entitlement to an effective date prior to April 28, 2011, for special monthly compensation based on loss of use of a creative organ is dismissed.

Entitlement to special monthly compensation for additional anatomical loss is dismissed.

Entitlement to a higher rate of special monthly compensation based on anatomical loss is dismissed.

Restoration of service connection for diabetic peripheral neuropathy of the bilateral upper extremities is denied.

The effective date of the severance of service connection for diabetic peripheral neuropathy of the bilateral upper extremities was proper; the appeal is denied.

New and material evidence having been received, the application to reopen the claim for entitlement to service connection for tinnitus is granted.

An effective date prior to August 17, 2015, for service-connected coronary artery disease (CAD) is denied.

An initial 60 percent disability rating for CAD prior to February 18, 2019, is granted.

An initial disability rating in excess of 60 percent for CAD for the entire period on appeal is denied.

An effective date prior to August 17, 2015, for a 50 percent rating for posttraumatic stress disorder (PTSD) is denied.

A disability rating in excess of 50 percent for PTSD is denied.

An effective date prior to March 25, 2014, for service connection for peripheral neuropathy of the left lower extremity is denied.

An effective date prior to March 25, 2014, for service connection for peripheral neuropathy of the right lower extremity is denied.

Restoration of a 20 percent disability rating for right lower extremity peripheral neuropathy effective December 23, 2020, is granted.

Restoration of a 20 percent disability rating for left lower extremity peripheral neuropathy effective December 23, 2020, is granted.

An initial disability rating in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter, for peripheral neuropathy of the left lower extremity is denied.

An initial disability rating in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter, for peripheral neuropathy of the right lower extremity is denied.

A disability rating in excess of 20 percent for diabetes mellitus, type 2 (diabetes), is denied.

Service connection for diabetic nephropathy is granted.

A compensable rating for ED is denied.

REMANDED

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for a right knee disorder is remanded.

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for tinnitus is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. Prior to the promulgation of a decision in the appeal, during the May 2021 Board hearing, the Veteran withdrew the appeal for the issues of entitlement to pension benefits, entitlement to an effective date prior to April 28, 2011 for erectile dysfunction and special monthly compensation based on the loss of use of a creative organ, entitlement to special monthly compensation for additional anatomical loss, and entitlement to a higher rate of special monthly compensation for the loss of a creative organ.

2. The grant of service connection for diabetic peripheral neuropathy of the bilateral upper extremities in a September 2014 rating decision was clearly and unmistakably erroneous.

3. The June 1, 2017, effective date of the severance of service connection for diabetic peripheral neuropathy of the bilateral upper extremities was more than 60 days after notification was sent to the Veteran.

4. The Veteran's claim for entitlement to service connection for tinnitus was denied in a September 2014 rating decision the Agency of Original Jurisdiction (AOJ); the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one year.

5. Evidence added to the record since the final September 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus.

6. On August 17, 2015, the Department of Veterans Affairs (VA) received an intent to file a claim for VA compensation benefits.

7. In January 2016, VA received an original claim for service connection for CAD and a claim for an increased rating for PTSD.

8. Resolving reasonable doubt in his favor, for the entire appeal period, the Veteran's CAD resulted in dyspnea or fatigue at 3 to 5 metabolic equivalents (METs), without 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.

9. For the entire appeal period, the Veteran's PTSD is productive of manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity.

10. On March 25, 2014, VA received a claim for an increased rating for diabetes, as well as a claim for service connection for peripheral neuropathy of the upper extremities.

11. The evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran's service-connected bilateral lower extremity peripheral neuropathy, under ordinary conditions of life and work.

12. Prior to February 21, 2019, the Veteran's bilateral lower extremity peripheral neuropathy was manifested by mild incomplete paralysis of the sciatic nerve.

13. As of February 21, 2019, the Veteran's bilateral lower extremity peripheral neuropathy was manifested by moderate incomplete paralysis of the sciatic nerve.

14. For the entire appeal period, the Veteran's diabetes was controlled by the use of oral medication, insulin injections, and a restricted diet, without regulation of activities, and results in diabetic nephropathy, without other complications besides his already service-connected erectile dysfunction and diabetic neuropathy.

15. The Veteran's ED does not result in penile deformity.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal have been met for the issues of entitlement to pension benefits, entitlement to an effective date prior to April 28, 2011 for erectile dysfunction and special monthly compensation based on the loss of use of a creative organ, entitlement to special monthly compensation for additional anatomical loss, and entitlement to a higher rate of special monthly compensation for the loss of a creative organ. 38 U.S.C. § 7105 (2020); 38 C.F.R. § 19.55 (2020).

2. Service connection for upper extremity diabetic peripheral neuropathy was properly severed with the correct effective date, and the criteria for restoration of service connection have not been met. 38 U.S.C. §§ 1110, 5109A; 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310.

3. The September 2014 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105(c) (2012) [2020]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014) [(2020)].

4. The criteria to reopen the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

5. The criteria for an effective date prior to August 17, 2015, for service-connected CAD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

6. For the entire appeal period, the criteria for an initial rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, DC 7005.

7. The criteria for an effective date prior to August 17, 2015 for a 50 percent rating for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

8. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411.

9. The criteria for an effective date prior to March 25, 2014, for service connection for bilateral lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

10. The criteria for restoration of 20 percent disability ratings for left and right lower extremity peripheral neuropathy effective December 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520.

11. The criteria for initial disability ratings in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter, for left and right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520.

12. The criteria for a rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913.

13. The criteria for service connection for diabetic nephropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.301, 3.303, 3.310.

14. The criteria for a compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 7522.

15. Prior to February 18, 2019, the criteria for an initial 60 percent disability rating for CAD have been met.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on an appeal from January 2015, May 2016, and March 2017 rating decisions by a VA Regional Office, which is the AOJ. 

In May 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the record.

Since the May 2019 statements of the case, additional evidence relevant to the issues pertaining to peripheral neuropathy was added to the record without a waiver of AOJ review, including a December 2020 VA examination and additional VA treatment records. However, the AOJ reviewed such records in the first instance in December 2020, which resulted in the rating reduction currently on appeal. Thus, there is no prejudice in proceeding with adjudication without a waiver. In this regard, the Board also notes that insofar as the records address other issues currently on appeal, the information is duplicative of the evidence already of record, and is thus not new or relevant. Further, the Veteran submitted additional evidence himself, with a waiver. Accordingly, the Board may proceed with adjudication.

Additionally, the Veteran filed an appeal of the December 2020 decision in the Modernized Appeals system. However, the reduction in rating for the bilateral lower extremity peripheral nerves is part and parcel of the increased rating claim, and is properly included in the legacy appeal herein. Therefore, the Board will continue with adjudication of such appeal. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

Importantly, the issue of entitlement to service connection for diabetic nephropathy was not adjudicated by the AOJ, or appealed by the Veteran. However, the Board finds that such issue has been raised by the record as part of the increased rating for diabetes pursuant to the United States Court of Appeals for Veterans Claims decision in Bailey v. Wilkie, 33 Vet. App. 188, 191 (2021) and is within the Board's jurisdiction to be adjudicated.

Withdrawn Claims

1. Entitlement to service-connected pension benefits is dismissed.

2. Entitlement to an effective date prior to April 28, 2011, for ED is dismissed.

3. Entitlement to an effective date prior to April 28, 2011, for special monthly compensation based on loss of use of a creative organ is dismissed.

4. Entitlement to special monthly compensation for additional anatomical loss is dismissed.

5. Entitlement to a higher rate of special monthly compensation based on anatomical loss is dismissed.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or an authorized representative. Id. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Id. During the May 2021 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issues of entitlement to pension benefits, entitlement to an effective date prior to April 28, 2011 for erectile dysfunction and special monthly compensation based on the loss of use of a creative organ, entitlement to special monthly compensation for additional anatomical loss, and entitlement to a higher rate of special monthly compensation for the loss of a creative organ. The Board finds that the Veteran's oral statement expressing his intent to withdraw his appeal on these issues was explicit, unambiguous, and undertaken with a full understanding of the consequences of such action. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  Moreover, the Board finds that the hearing transcript satisfies the written requirements of 38 C.F.R. § 19.55 concerning the withdrawal of the appeal for these issues.  See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (finding an oral statement of a representative to be a writing because it was transcribed).

Thus, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed.

Severance of Service Connection

6. Propriety of the severance of service connection for diabetic peripheral neuropathy of the bilateral upper extremities.

7. Propriety of the effective date of the severance of service connection for diabetic peripheral neuropathy of the bilateral upper extremities.

The Veteran contends that the March 2017 rating decision which severed service connection for diabetic peripheral neuropathy of the bilateral upper extremities effective June 1, 2017, was improper. He contends the severance is erroneous as he currently has peripheral neuropathy of the upper extremities, which has gotten worse over time, and it was noted as diabetic neuropathy in an August 2014 VA examination; and thus, restoration of service connection is warranted. However, after a review of the record, the Board finds that the grant of service connection was based on an incorrect diagnosis, and severance of service connection was proper.

Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection.

a. Due Process

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d).

The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for bilateral upper extremity diabetic peripheral neuropathy as a progression of his service-connected diabetes in a September 2014 rating decision, originally included in the rating for diabetes.

In a March 2016 rating decision that was issued in April 2016, the AOJ proposed to sever service connection for this disability. The AOJ stated that the decision to grant service connection for bilateral upper extremity diabetic peripheral neuropathy was clearly and unmistakably erroneous because an October 2014 VA examination, in fact, found that diabetic neuropathy existed in the lower extremities only. In this regard, the Board notes that the proposal mistakenly referred to the January 2015 rating decision as the one in which service connection was granted, and that it relied on the October 2014 examination in so granting. However, as noted above, the diabetic neuropathy was added to the diabetes rating in the September 2014 rating decision. Regardless, this is a harmless error as the AOJ correctly identified the error in granting service connection. The AOJ determined then that the grant of service connection was not supported by the evidence of record.

In a March 2017 rating decision, the AOJ severed service connection for bilateral upper extremity diabetic peripheral neuropathy. The AOJ reiterated the findings from the March 2016 rating decision, also noting an October 2016 VA opinion found the Veteran did not have diabetic upper extremity neuropathy, and concluded that severance was proper.

The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating in April 2016, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in an April 2016 letter.

The AOJ issued the March 2017 rating decision, which severed service connection prospectively effective June 1, 2017. The resulting period for which the Veteran was in receipt of service connection began on March 25, 2014, and ended June 1, 2017, a period of less than ten years. 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on March 8, 2017. The June 1, 2017, date was greater than the last day of the month in which a 60-day period from the date of the March 2017 notice expired. Thus, all due process requirements were met in the severance of service connection for tinnitus. 38 C.F.R. § 3.105(d).

In this regard, the effective date for a severance action is set by law. Id. There is no function or manner for the Board to set a new effective date other than a procedural error by the AOJ. Consequently, as the effective date of the severance of service connection was proper, his effective date claim must be denied.

b. Existence of CUE in the Award of Service Connection

Having met the due process requirements, the remaining question before the Board is whether the grant of service connection for upper extremity diabetic peripheral neuropathy was clearly and unmistakably erroneous. After a review of the record, the Board concludes that the severance of service connection was proper because the grant of service connection was based on an erroneous diagnosis of "diabetic" upper extremity peripheral neuropathy.

To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision.  Allen v. Nicholson, 21 Vet. App. 54 (2007). A clear and unmistakable error is one about which reasonable minds could not differ. 38 C.F.R. § 3.105(a)(1)(i).

In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). 

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d).

In the instant case, the September 2014 grant of service connection was based on August 2014 VA examinations for diabetes and diabetic peripheral neuropathy. Specifically, the diabetes VA examination merely stated that the Veteran had complications of diabetic peripheral neuropathy, without indicating an extremity affected. Then, the peripheral nerve examination noted diagnoses of "Diabetic Peripheral Neuropathy, bil [sic] Carpal Tunnel" with a diagnosis date of November 2010. He had numbness and tingling bilaterally, with pain running up the top of his hand and forearm. Importantly, the examination report noted the Veteran underwent electromyography (EMG) testing in June 2014, which showed abnormal results bilaterally in the upper extremities. The report noted a diagnosis of "bilateral median neuropathies (e.g. carpal tunnel syndrome)" that were located at the distal wrist. The report indicated the Veteran should be considered for CTR (carpal tunnel release). Finally, the examiner included the upper extremity symptoms when discussing the functional impact of the "diabetic peripheral neuropathy."

The Veteran underwent another VA examination for his peripheral nerves in October 2014, at which time he was diagnosed with diabetic peripheral neuropathy in the feet only. The examiner reviewed the record and noted that the Veteran underwent an EMG in June 2014, as noted in the prior examination; however, the examiner noted the EMG diagnosed carpal tunnel syndrome/median nerve neuropathy bilaterally, but did not report findings of diabetic neuropathy in the upper extremities. The examiner reiterated later in the examiner that the EMG findings did not show upper extremity diabetic neuropathy, and that the Veteran did not have diabetic neuropathy in the upper extremities.

After the proposal to sever service connection, the Veteran was afforded another VA examination for the peripheral nerves in October 2016, which again noted diabetic neuropathy in the feet only. The examiner likewise noted a diagnosis of carpal tunnel syndrome/median nerve neuropathy in the upper extremities, and not diabetic neuropathy. The examiner provided an etiological opinion for the upper extremity neuropathy, concluding that the carpal tunnel syndrome and median nerve neuropathy was less likely than not caused by the service-connected diabetes. The examiner stated that the EMG results from June 2014 clearly reported that the cause of the Veteran's upper extremity neuropathy issues was related to severe "bilateral carpal tunnel syndrome/median nerve compression". The examiner also noted the Veteran underwent bilateral carpal tunnel surgeries in 2014, which helped with his pain but left some numbness. Importantly, the examiner noted again that the EMG and nerve conduction study results did not report any findings of diabetic neuropathy as the cause for the Veteran's symptoms in his hands or upper extremities.

The severance process on appeal herein followed. After the severance was effectuated, the Veteran underwent two additional VA examinations for his peripheral nerves in February 2019 and December 2020. Notably, both the later examinations noted there was no diabetic neuropathy of the upper extremities, and the upper extremity neuropathy was due to carpal tunnel syndrome.

Based on the foregoing, the Board finds that the 2014 grant of service connection for bilateral upper extremity diabetic peripheral neuropathy was clearly and unmistakably erroneous because the diagnosis in the VA examination upon which such grant was based was erroneous, and not supported by the evidence of record. Specifically, the October 2016 examiner specifically reviewed all the evidence of record, noting such, and certified that the Veteran did not have diabetic peripheral neuropathy of the upper extremities. 38 C.F.R. § 3.105(d). In this regard, although the examiner did not specifically use the word "certify," the examiner's strong language in the opinion, and the opinion as a whole, clearly meet the standard set in regulation. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (a VA examination report "must be read as a whole" to determine the examiner's rationale.). Therefore, as the diagnosis has later been universally refuted by four VA examiners, the grant of service connection based on such diagnosis was erroneous.

Having found a clear error, the Board must also inquire as to whether the error manifestly changed the outcome of the award of service connection. The evidence reflects that the Veteran would not have been granted service connection but for the error. Specifically, the award of service connection was done summarily as a manifestation of the service-connected diabetes, and the record shows that the actual diagnosis of carpal tunnel syndrome and median nerve neuropathy is not related to diabetes. In this regard, the Board finds the October 2016 examination and opinion highly probative. Notably, the examiner considered all of the pertinent evidence of record, to include the statements of the Veteran and the prior examination, and provided a complete rationale, relying on, and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the Veteran does not contend, and the record does not reflect, that his carpal tunnel syndrome had its onset in service or is otherwise due to his active service.

Accordingly, the Board must conclude that the award of service connection for upper extremity diabetic peripheral neuropathy did involve clear and unmistakable error, as the grant was based on an erroneous diagnosis which was not supported by the cited evidence of record, and the evidence of record does not otherwise support the grant. That error was outcome determinative and reasonable minds cannot differ as to the correct diagnosis referable to the upper extremity neuropathy. Therefore, severance of service connection for bilateral upper extremity diabetic peripheral neuropathy on the basis of clear and unmistakable error was proper, and the appeal is denied.

Reopened Claim

8. Whether new and material evidence has been received in order to reopen the claim for entitlement to service connection for tinnitus.

Service connection for tinnitus was originally denied in a September 2014 rating decision. At such time, the AOJ considered the Veteran's service treatment records, post-service treatment records, lay statements of record, and an August 2014 VA examination for hearing loss and tinnitus. In this regard, the AOJ noted that he denied experiencing ringing in his ears or tinnitus at the August 2014 VA examination. Consequently, the AOJ denied service connection as there was no current diagnosis.

In September 2014, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement as to such decision. Notably, he requested reconsideration of several other issues decided in the September 2014 decision, including hearing loss; however, he did not include tinnitus. Additionally, he filed a notice of disagreement in January 2015 in response to a January 2015 rating decision promulgated after his request for reconsideration. However, even though he was still within the time limit to file a notice of disagreement to the September 2014 decision, he did not include the denial of service connection for tinnitus in the notice of disagreement. Furthermore, the evidence added to the record within one year of the issuance of such decision did not pertain to tinnitus or a diagnosis of tinnitus, and thus was not material to the claim. Further, no new, relevant service department records have been added to the file since the decision. Therefore, the September 2014 rating decision is final. 38 U.S.C. § 7105(c) (2012) [2020]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014) [(2020)].

Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed unless new and material if evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105.

Since the final September 2014 rating decision, additional evidence, most pertinent lay testimony from his Board hearing, has been received. The Veteran testified that he experiences tinnitus, and has experienced such since he left service. As tinnitus is capable of lay observation, and diagnosable by a Veteran, his reports are competent to provide a diagnosis of tinnitus, and such statements are presumed credible. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, as service connection was previously denied on the basis that there was no evidence of a current diagnosis of tinnitus, and the newly received evidence addresses and unestablished factor of service connection, the Board finds that evidence received since the September 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. Consequently, as new and material evidence has been received, the claim is reopened.

CAD Claims

The Veteran contends that his CAD symptoms are more severe than is reflected by his currently assigned disability ratings. In this regard, he contends his functional limitation has been more or less the same for the entire appeal period, and thus the 60 percent rating should apply to the entire period. He also generally contends that a higher rating is warranted. Finally, he nonspecifically contends that an earlier effective date is warranted. Upon review of the record, and resolving all doubt in his favor, the Board partially agrees, and finds that 3 to 5 METs produced dyspnea or fatigue for the entire appeal period, and thus a 60 percent rating is warranted. However, a higher 100 percent rating, and an earlier effective date for service connection, is not warranted.

By way of background, VA received an intent to file a claim for benefits on August 17, 2015. Thereafter, he filed an original application for service connection for ischemic heart disease or CAD in January 2016.

Then, he was afforded a VA heart examination in April 2016, wherein he was diagnosed with CAD. The examiner noted he had a cardiac catheterization performed in April 2011, and the Veteran denied experiencing chest pain, but he reported shortness of breath, wheezing, and low energy. However, the examiner also noted he had comorbid asthma. Upon evaluation, the examiner noted the Veteran required continuous medication to control his CAD, but there was no history of congestive heart failure (CHF) or myocardial infarction, or cardiac hypertrophy or dilation. A March 2016 echocardiogram showed a left ventricular ejection fraction (LVEF) of 60 to 65 percent, with grade I (mild), left ventricular diastolic dysfunction, noting the left artery was mildly dilated, and mild to moderate mitral regurgitation, with trace tricuspid regurgitation. At the time of the examination, the Veteran was unable to complete exercise stress testing due to non-cardiac conditions. Thus, the examiner completed an interview based METs test, where he concluded that 3 to 5 METs resulted in dyspnea and fatigue. However, the examiner noted that the METs limitation was not solely due top CAD, but rather to multiple disorders, and it was not possible to accurately estimate the amount attributable to each condition.

The Veteran was then afforded another VA examination for his CAD in February 2019. The Veteran again denied chest pains, but endorsed shortness of breath on walking short distances, and that he got weak very easily. The examiner likewise reported the presence of comorbid asthma. Similar to the first examination, there was no history of CHF, and the March 2016 echocardiogram findings were still relied upon. The examiner conducted another interview based METs testing, which likewise showed fatigue at 3 to 5 METs; however, at this time it was all attributable to the heart condition. The examiner noted he tires out easily and the METs testing was most reflective of his actual functional capability.

9. Entitlement to an initial disability rating in excess of 30 percent prior to February 18, 2019, and in excess of 60 percent thereafter, for CAD.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

The Veteran's CAD has been rated pursuant to 38 C.F.R. § 4.104, DC 7005 for the entire appeal period. Under DC 7005, a 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.

A 60 percent rating is warranted where 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 results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

A 100 percent rating is warranted where there is chronic congestive heart failure, or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent.

Pertinent to the evaluation of heart disabilities, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104.

Initially, the Board notes that the Veteran's METs testing has been consistent for the entire appeal period. Specifically, 3 to 5 METs has been found to result in at least fatigue at each examination of record. However, the Veteran was only assigned a 30 percent disability rating for the period on appeal prior to February 18, 2019, because the examiner noted that the CAD was not the sole basis of the METs testing, and rather other non-cardiac disabilities contributed. Nonetheless, in reviewing the record, the Board finds that such METs testing results should be attributed to CAD alone. The April 2016 examiner stated that not all the METs results could be attributed to CAD alone; however, the examiner did not continue and differentiate the amount that was attributable to non-service-connected disabilities. When it is not possible to separate the effects of a service-connected condition from a non-service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Therefore, the Board resolves all doubt in the Veteran's favor, and attributes all the METs to the service-connected CAD. Further, the later VA examination results support this decision, as the METs testing was consistent, and attributed to CAD alone, and the Veteran testified that his symptoms and severity have not changed throughout the period on appeal.

Consequently, the Veteran's CAD resulted in fatigue at 3 to 5 METs for the entire period on appeal, and a 60 percent disability rating is warranted for the entire period.

However, a higher 100 percent rating is not warranted at any point during the appeal period. Initially, there is no evidence that the Veteran ever had CHF. Further, his LVEF has been above 60 percent for the entire appeal period. Finally, the Veteran does not contend, and the record does not reflect, that his less than 3 METs would result in dyspnea, fatigue, angina, dizziness, or syncope. Notably, as described above, his METs testing has been consistently found to result in fatigue at 3 to 5 METs. Therefore, insofar as a 60 percent rating is warranted for the entire period on appeal, a higher 100 percent disability rating is herein denied.

10. Entitlement to an effective date prior to August 17, 2015, for service connection for CAD.

Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2014). For claims filed on or after March 24, 2015, however, VA requires that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 38 C.F.R. § 3.155(d). In addition, upon receipt of a form indicating the claimant's intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received if VA receives a complete application form for the benefit sought within 1 year of receipt of the intent to file form. 38 C.F.R. § 3.155(b). The Veteran's current effective date is based on the receipt of an intent to file form received on August 17, 2015.

The essential requirements of any claim are: (1) an intent to apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing. See Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). A veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. Id.

Prior to January 2016, the Veteran filed other disability claims with VA, including specifically for hypertension, but he never mentioned a heart disorder. See e.g. March 2014 Fully Developed Claim; see also July 1973 Application for Compensation or Pension; October 2014 Statement in Support of Claim. The specific medical records referenced in his claims contain no mention of a heart disorder. In this regard, the Veteran reported cardiac symptomatology, including rapid heart rate and high blood pressure, but this was always in connection with his claims for hypertension. Further, although the record reflects CAD began and was diagnosed in 2011, the Veteran did not identify any specific medical record in his statements to the AOJ, the Veteran did not submit any claim identifying such record, nor did he file a claim referable to CAD until January 2016.

Prior to the January 2016 claim for CAD, the Veteran did file an August 17, 2015, intent to file form, which is the basis of the current effective date. There is no earlier "intent to file" form of record. Thus, the effective dates cannot be extended on that basis.

The Board finds that the preponderance of the evidence shows the Veteran did not file either an informal or a formal claim for benefits for CAD prior to August 17, 2015. See Sellers, supra. No CAD or heart disability could be incorporated into these earlier claims by reference to medical records. Cf. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). The Veteran offers no argument or evidence in support of his appeal of this issue. See May 2021 Board Hearing Testimony. Consequently, an effective date prior to August 17, 2015, for such benefits is not warranted because there is no communication that may serve as an informal or formal claim for benefits that was received prior to such time. There being no doubt to resolve in the Veteran's favor, the appeal must be denied.

PTSD Claims

Similar to CAD, the Veteran contends his PTSD symptoms and resulting functional impairment is not adequately reflected by the currently assigned disability rating. In this regard, he testified that he has worsening paranoia, concentration issues, suspiciousness, sleep impairment, and isolation. He also nonspecifically contends that an earlier effective date is warranted. However, after a review of the record, the Board finds that his symptoms are wholly contemplated by the currently assigned rating, and they result in no more than occupational and social impairment with reduced reliability and productivity. Further, an effective date prior to August 17, 2015 is not warranted as the record does not show his disability worsened within a year prior to such date.

Turning to the evidence of record, VA received an intent to file a claim for benefits on August 17, 2015. Thereafter, VA received a claim for an increased rating for PTSD in January 2016. Accordingly, the period on appeal begins August 17, 2015, the date VA received his claim, plus the one-year look-back period. See 38 C.F.R. § 3.157; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Following his increased rating claim, the Veteran first underwent a VA examination to determine the severity of his PTSD in March 2016. At that time the examiner noted he had diagnoses of PTSD with unspecified depressive disorder and anxious distress. The examiner noted the symptoms overlap and cannot be differentiated. Thus, the Board will attribute all the symptoms and related functional impairment to PTSD. See Mittleider, supra. The examiner endorsed an occupational and social impairment with reduced reliability and productivity. The Veteran reported his relationship with his wife, to whom he had been married to since 2001, was wonderful. He also maintained a great relationship with his son, and noted that he was good friends with his ex-wife. The Veteran has a few friends he used to play golf with, and now plays cards with, at their country club. He reported his socialization was somewhat limited, but he attends church, goes to a casino occasionally, out to the country club twice a week, to the movies a couple times a year, and he goes to concerts and shows. He also reported he goes to a Fourth of July celebration in Memphis, and to flea markets. He also noted he has an old military friend he communicates with online or over the phone. Finally, he stated he hosts his old friends at his house for a cookout and to enjoy his backyard once a year.

Turning to his mental health function, the examiner noted he had strong negative beliefs about self, a loss of interest in activities, feelings of detachment from others, and trouble experiencing positive feelings. He had arousal symptoms of irritability, hypervigilance, exaggerated startle reactions, difficulty concentrating, and sleep disturbances, including nightmares and cold sweats. He reported having mood swings and being moody, with increased problems with irritability, noting he loses his temper over little things. In this regard, he stated he gets upset at times, and had a recent incident at the Country Club when he was playing cards with his friends. He lost his temper and yelled at his friend about not dealing him the same number of cards he gave the other players. Importantly, his anger is always expressed verbally, but he does sometimes get loud and somewhat verbally aggressive. He also reported mild or occasional problems with short term memory, including that he sometimes forgets to put his tools away, forgets where he puts things, and has problems with numbers. Finally, he was noted to have chronic anxiety, but he denied suicidal or homicidal ideations.

The examiner noted specific symptoms of a depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbances in motivation or mood, difficulty establishing or maintaining relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. Upon observation, the examiner noted the Veteran was clean and well groomed, and dressed neatly in casual clothing. He cooperated fully in the examination process, answering all questions completely and without difficulty, and he was alert and well oriented to all four spheres. His mood was somewhat labile while his affect was anxious, and he became quite agitated a few times during the session when describing a negative experience he had with an intern at the VA last year. His speech was usually normal in tone, volume, rate, and quantity, but he did present with some hostility and anger in describing his interactions with the psychology intern. His speech was clear and distinct, being easily understandable while his language use skills were good. His eye contact was appropriate, and his intellectual functioning was deemed to be in the average to slightly above average range with a mild deficit noted in his fund of information. His insight was good while mental arithmetic processing, verbal reasoning, abstract thinking, and judgment were intact. His memory was not impaired, and no significant deficits were noted in immediate recall, short-term, intermediate, and long-term components. His attention, focus, and concentration were within normal limits, and his thought processes were organized, logical and goal directed with no problems noted. He denied the presence of hallucinations, delusions, illusions, paranoia, and other psychotic manifestations, and none were observed or suspected during the examination, and he denied suicidal and homicidal ideation and intent.

The Veteran then underwent another VA examination for his PTSD in February 2019, wherein the examiner likewise endorsed occupation and social functioning with reduced reliability and productivity. He maintained the same level of familial and social functioning. He also reported he stopped following treatment at VA, and his symptoms were well managed by medications, as he is able to enjoy time in his home and back yard, and with his family. However, he did report he has become less tolerant of other since the last examination, stating he feels people are "out for no good," but he only has problems with new or unfamiliar people. He also noted that there had been an increase in helicopter activity from a nearby hospital, which triggers his symptoms. Upon evaluation he had specific symptoms of anxiety, suspiciousness, and disturbances in motivation and mood. He was observed as alert and oriented in all spheres, well groomed, pleasant, and cooperative. His mood was euthymic, and his affect congruent. There were no disturbances in speech, memory or thought process, and his insight and judgement were fair. He denied suicidal or homicidal ideation and he denied hallucinations or delusions. The examiner noted parenthetically that the Veteran's symptoms appeared to have decreased, but his reaction to symptoms have increased, causing no change in impairment level from 2014 examination.

The Veteran also underwent VA treatment for the most part of the period on appeal. Notably, the treatment records reflect generally the same level of impairment as seen on examination.

11. Entitlement to a disability rating in excess of 50 percent for PTSD.

The Veteran's service-connected PTSD is evaluated as 50 percent disabling under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130.

Under such DC, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. 

The evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a).

Based on the foregoing, the Board finds that for the entire appeal period, the Veteran's PTSD resulted in, at most, occupational and social impairment with reduced reliability and productivity, thus warranting no more than the currently assigned 50 percent rating for such period.

Initially, the Board notes that his PTSD symptoms did not affect his occupational function while the Veteran was working. Notably, the Veteran stated he took early retirement because he was able to make as much money with his retirement as he was while working, and his physical disabilities made work difficult. However, he actually reported that his PTSD symptoms worsened after he stopped working, as he held himself to a high standard at work that he believes helped his symptoms. Nonetheless, as his symptoms have worsened since he stopped working, they would inevitably cause greater impairment on his ability to perform in an occupation now. In his testimony and statement of record, the Veteran focuses on his interpersonal problems as causing the most impairment. In this regard, he believes he would have trouble keeping his temper and avoiding conflicts with people. However, the Veteran's impairment would not be equivalent of deficiencies in most areas. Notably, although he has reported some concentration issues, he has not been found to have any concentration problems, or limited thought processes at all. Rather, his primary occupational impairment would be from difficulty with coworkers.

In this regard however, the record shows that the Veteran has maintained positive familial and social relationships. Notably, while he has some difficulty engaging in social activities, he in fact does so on a frequent basis, going out multiple times a week. He also maintains more than a few friends. Consequently, although the Veteran reports some social impairment, including worsening isolation, suspiciousness, and paranoia, it does not rise to the level to be considered deficient in most areas. Rather, he appears to control his symptoms fairly well and maintain a relatively good social life, and a very good family life.

Further in turning to the reported symptoms of record, he has never been endorsed with having a symptom commensurate with a 100 percent rating, and he has only ever been endorsed with a symptom commensurate with a 70 percent rating once, with the March 2016 examiner noting impaired impulse control. However, in reviewing the record, the Veteran does not appear to have impaired impulse control. Notably, in that examination, the examiner also noted that the Veteran has never escalated to violence, whether provoked or unprovoked. Rather, the impaired impulse control appears to be related to the Veteran's increased irritability, and quick temper. Regardless, the presence of a single enumerated symptom is not dispositive of the particular disability level. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Rather, the entire disability picture as whole must be considered, and the frequency and severity of the symptom considered under a 70 percent rating, in addition to the other symptoms of record considered under a 50 percent rating or lower, do not rise to a level of occupational and social impairment with deficiencies in most areas, and do not warrant a higher 50 percent rating. See Vazquez-Claudio, 713 F.3d at 114.

Thus, while the Veteran's PTSD does cause social and occupational impairment; the record reflects that his PTSD symptoms are wholly contemplated by his current 50 percent rating. Therefore, a higher rating for PTSD is not warranted.

12. Entitlement to an effective date prior to August 17, 2015 for a 50 percent rating for PTSD.

Generally, except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). As above, on and after March 24, 2015, a completed application form must be received by VA to constitute a claim. 38 C.F.R. § 3.155(a). 

Upon review of the record, no formal or informal claim for an increased rating for a psychiatric disorder was received until VA received his intent to file a claim for compensation on August 17, 2015. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, 25 Vet. App. 123, 134 (2011).

The Veteran offers no cogent reason his effective date should be earlier than August 17, 2015, other than that it may have worsened within a year of filing his claim. In this regard, when VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C. § 5110(b)(2); Hart, supra. The Veteran's argument for an earlier effective date is notably referencing the "look-back period." Gaston, supra.

In this regard, the record includes some VA treatment records from within the year prior to his August 17, 2015 intent to file a claim. However, such records do not show a clear worsening of his disability in that time period. Importantly, the record includes the initial November 2014 PTSD examination, which only endorsed an occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Veteran reported the same level of social and familial impairment and engagement therein, which notably, was very good. Further, he was endorsed with symptoms of anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work relationships. Notably, the Veteran was only endorsed with one symptom commensurate with a 50 percent rating. However, based on his positive social function at the time, and the frequency and severity of the other noted symptoms, the Board finds that his disability did not clearly increase in severity at that time. See Vazquez-Claudio, supra. This is consistent with the Veteran's own reports of continual worsening through the period on appeal.

Further, the additional symptoms found in the March 2016 examination were not reported until that time. Notably, in September and December 2015 treatment records, the Veteran reported worsening anxiety, including beginning to experience panic attacks, as well as irritability and easy frustration. However, the treatment record also shows that he maintained good cognition, impulse control, thought processes, and judgment. In this regard, those were the only additional symptoms the Veteran reported at that time, and it was not corollary with any noted increase in overall functional impairment.

Here, it is apparent the Veteran's PTSD symptoms were worsening throughout the appeal period up to the March 2016 VA examination. However, a specific date of worsened severity within a year of the August 17, 2015, is not factually ascertainable from the evidence of record. Rather, it appears as though the Veteran experienced varying symptoms to varying degrees throughout this period, and it was not until the March 2016 examination that all his impairment was fully realized.

Consequently, an effective date earlier than August 17, 2015 for the award of a 50 percent rating for PTSD is not warranted, to include as due to a factually ascertainable increase in disability within a year of the filing of a claim for an increased rating.

Peripheral Neuropathy Claims

The Veteran contends that his bilateral lower extremity peripheral neuropathy symptoms are not contemplated by the currently assigned disability ratings. Incorporated within this claim, he also contends that the December 2020 reduction in rating was not proper, as his symptoms have not improved, and rather have worsened. Finally, he contends an effective date prior to March 25, 2014 is warranted. After a review of the record, the Board finds that the Veteran's lower extremity peripheral neuropathy symptoms have not improved under the conditions of ordinary life, and the reduction was improper. Therefore the 20 percent disability rating is restored. However, the Board also finds that the Veteran's symptoms are wholly contemplated by his currently assigned disability ratings, and a rating in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter, is not warranted. Finally, the Board finds that the assigned effective date of March 25, 2014, the date of claim for an increased rating for diabetes, was proper.

Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. §§ 4.123, 4.124, and 4.124a. The Veteran is currently rated for bilateral sciatic nerve neuropathy under DC 8520. 

DC 8520 provides for a 10 percent rating for mild incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Further, an 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms."  One possible source for such definitions would be the dictionary.

Webster's II New College Dictionary defines "mild," as relevant here, as "not severe."  Id. at 694 (1995).  A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount."  Id. at 1038.  The definitions for "moderate" include "of average or medium quantity, quality, or extent."  Id. at 704.  Finally, definitions for "severe" include "extremely intense."  Id. at 1012.  It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.; see also Miller v. Shulkin, 28 Vet. App. 376 (2017).

Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

Turning to the medical evidence of record, in March 2014, the Veteran filed a claim for an increased rating for diabetes, as well as service connection for peripheral neuropathy of the hands as secondary to diabetes. He was then afforded a VA examination for his peripheral nerves in August 2014. He reported at that time that his lower extremity peripheral neuropathy felt like a bone bruise, and he couldn't feel the ladder under his feet, noting that he had stepped off the ladder before three rungs above the ground. He also reported that the burning and tingling in his feet wake him up at night. Upon evaluation, the examiner noted he had intermittent pain and paresthesias or dysesthesias of a moderate severity in the right and of a mild severity in the left, with moderate numbness bilaterally. He had normal strength testing, normal deep tendon reflexes (DTRs), normal sensory testing, and a normal vibrations sense test, with no atrophy or trophic changes. The examiner endorsed bilateral lower extremity peripheral neuropathy, but did not endorse a specific nerve group or severity level.

Then, in October 2014, the Veteran underwent another VA examination for his peripheral neuropathy. The Veteran reported experiencing tingling and numbness in feet for the past one to two years, which was mild for the most part but worse in the right foot. Upon evaluation he showed mild intermittent pain and paresthesias bilaterally, with again normal strength, DTRs, and position sense. However, he did show decreased sensation in the right foot/toes. Similar to the previous examination, there was no atrophy, but there was some hair loss on the legs below midcalf. The examiner also noted like the prior examination, that it was not possible to assign the peripheral neuropathy to a specific nerve group.

The Veteran was evaluated by VA examiner's again in October 2016, where he showed bilateral mild intermittent pain, moderate paresthesias or dysesthesias, and mild numbness. He was again found to have normal strength, DTRs, sensory testing, and position sense, but he had decreased cold sensation bilaterally. There was still no atrophy, but the same hair loss as found on the previous examination as again found. Additionally, the examiner could not attribute the peripheral neuropathy to a specific nerve group.

VA obtained a medical opinion in March 2017, where it was determined that the Veteran's peripheral neuropathy affected his sciatic nerves bilaterally. Then, he underwent another VA examination in February 2019. At that time, he reported numbness in his toes 90 percent of the time, with tingling in both feet, and tingling and numbness of both ankles. He also stated that sometimes he cannot assess a step and stumbles, but he had not fallen. He also reported some swelling bilaterally. Upon evaluation, he showed bilateral moderate intermittent pain, paresthesias, and numbness. Further, he was noted to have 4 out of 5 strength for both ankle plantar flexion and dorsiflexion, bilaterally, but otherwise normal strength. He also showed decreased DTRs in the ankle bilaterally, and decreased sensation int the foot/toes bilaterally, with decreased position sense. There was again no atrophy, but he was noted to have trophic changes of shiny skin and no hair. The examiner endorsed bilateral moderate incomplete paralysis of the sciatic nerve, noting he was a risk for falls, he was unable to stand or walk for long periods, he could not climb, job, jump, run, jog, or walk on uneven, rough, and hard surfaces. The examiner noted his symptoms had worsened since the last examination, and endorsed moderate sensory neuropathy.

Based on the prior examination, the AOJ increased the Veteran's disability rating to 20 percent, effective February 21, 2019, in a May 2019 rating decision. Thereafter, the Veteran underwent a final VA examination during the period on appeal in December 2020, at which time he reported his physical activity had decreased steadily, and he had gotten worse two years prior. He reported his feet wake him up three times a night because they are burning, which has gotten worse. Upon evaluation he showed mild intermittent pain and paresthesias, and moderate numbness, in the right; with mild constant pain and paresthesias, and severe numbness in the left. The Veteran had normal strength, DTRs, and sensory testing however, with the same trophic changes of hair loss and shiny skin. The examiner endorsed moderate sciatic incomplete paralysis. The Veteran also reported that he had fallen twice in past six months, first fall caused when he unknowingly stepped on a twig, and the second fall was because he did not pick up his foot, and it caught on a steppingstone in his yard. The examiner lastly noted that he has a functional impact of pain in his bilaterally when standing for extended periods, which is relieved by sitting down.

13. Whether the December 2020 reduction in disability rating from 20 percent to 10 percent for right lower extremity peripheral neuropathy was proper.

14. Whether the December 2020 reduction in disability rating from 20 percent to 10 percent for right lower extremity peripheral neuropathy was proper.

Based on the last VA examination of record, the AOJ reduced the Veteran's rating from 20 percent to 10 percent in a December 2020 rating decision, effective December 23, 2020. Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. 38 C.F.R. § 3.105(e). Here, the reduction did not result in a reduction in his overall compensation, and thus the provision of 38 C.F.R. § 3.105(e) are not applicable.

There are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id.

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra.

In the instant case, based on the foregoing medical evidence, it is clear that the Veteran's disability did not, in fact, improve. Notably, while the muscle strength testing, DTRs, and sensory testing all were again normal, his reported symptomatology had actually worsened. Additionally, the examiner endorsed the same level of severity of moderate incomplete paralysis. Thus, his symptoms remained unchanged.

Further, it is not sufficient to only show that an improvement in a disability has actually occurred. That is, it is not sufficient to show that his symptoms had decreased in severity. Instead, the evidence must also demonstrate that any such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. See Brown, at 420-21. Notably, the Veteran reported worse functional effect of waking up more frequently at night, and his impairment contributed to two falls.

Consequently, the Board finds that neither requirement for a rating reduction has been met. Therefore, the reduction in the rating assigned for bilateral lower extremity peripheral neuropathy was improper, and a restoration of the 20 percent ratings is warranted effective December 23, 2020.

15. Entitlement to an initial rating in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter for peripheral neuropathy of the left lower extremity.

16. Entitlement to an initial rating in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter for peripheral neuropathy of the right lower extremity.

Based on the foregoing, the Board finds that ratings in excess of 10 percent for bilateral sciatic neuropathy prior to prior to February 21, 2019, and in excess of 20 percent thereafter, are not warranted at any point during the period on appeal. In this regard, prior to the February 2019 VA examination, the Veteran reported mostly mild symptoms, with occasional moderate symptoms, and he did not have any decreased strength, DTRs, or sensation testing. Further, although he was noted to have some trophic changes of hair loss, he did not have any correlated functional impairment.

The Veteran was also found to have more than sensory symptoms in the February 2019 examination only, with minor impairment noted. Notably, he did not show any such physical impairment at the next examination of record.

Further, where neuropathy has been identified in the record, such has been consistently found to moderate sensory neuropath, resulting in moderate incomplete paralysis. The Board notes that the Veteran was noted as a fall risk, with a history of stumbling, and later two falls. However, the record does not indicate he has any actual physical impairment in his legs, let alone enough for foot drop, and rather such effects are resulting from his sensory impairment. Notwithstanding, the Veteran did walk with a cane, and he was noted at times to have an altered gait, yet such symptomatology was attributed to his left knee disorder.

In reaching its decision, the Board finds the findings from the VA examinations of record highly probative in determining the severity of the Veteran's neuropathy. See Nieves-Rodriguez, supra; Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this regard, the Board notes that use of terminology such as mild, moderate, and severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In the instant case, the examinations show a complete review of the record, including the Veteran's statements, and in-person examinations, and only reflect mild symptoms only prior to February 21, 2019, with normal strength, DTRs, sensory findings, alone or together.

Notably, in July 2021, the Veteran submitted a July 6, 2021 private treatment record from Fast Pace Urgent Care Clinic, wherein he reported skin sores on the anterior aspect of his left lower extremity which had a clear discharge beginning three or four days earlier, with abnormal swelling. These symptoms were not attributed to peripheral neuropathy, nor was peripheral neuropathy indicated in these records.  Moreover, the Veteran has not argued that his peripheral neuropathy caused such sores. Therefore, as the evidence does not indicate that these leg sores are due to peripheral neuropathy, they will not be considered in determining the appropriate rating. Parenthetically, the Board also notes that the Veteran has a concurrent separate appeal for vascular issues of the left leg, to which these records could also have been submitted in support of.

Further, although the Board notes that the Veteran showed decreased sensory testing, DTRs, and strength in February 2019, such only affected one part of the leg, and was only to one degree for each, never absent. Further, his testing had returned to normal by December 2020.

Thus, the Board finds the sensory findings do not warrant higher evaluations. Consequently, the Board finds that ratings in excess of 10 percent prior to February 21, 2019, and in excess of 20 percent thereafter for the Veteran's bilateral lower extremity peripheral neuropathy are not warranted.

17. Entitlement to an effective date prior to March 25, 2014, for service connection for peripheral neuropathy of the left lower extremity.

18. Entitlement to an effective date prior to March 25, 2014, for service connection for peripheral neuropathy of the right lower extremity.

The Veteran was granted an effective date of March 25, 2014, for service connection for bilateral lower extremity peripheral neuropathy. In this regard, the peripheral neuropathy was a progression of and part of the disease process for diabetes. The Veteran did not ever in fact, file a claim for service connection for lower extremity peripheral neuropathy. Nonetheless, the March 25, 2014 claim for an increased rating for diabetes includes any resulting disabilities, including peripheral neuropathy, and thus that is considered the date of claim for peripheral neuropathy.

Prior to March 2014, the Veteran filed a claim for an increased rating for diabetes in March 2011. The specific medical records referenced in his claim contain no mention of peripheral neuropathy of the lower extremities. In this regard, the record is silent for any lower extremity peripheral neuropathy symptoms until a May 2014 VA treatment record which noted he complained of tingling and numbness in his toes and hands. Similarly, the Veteran reported at his October 2014 VA examination that his lower extremity symptomatology had only been present for one or two years.

In this regard, the Veteran underwent a VA examination for diabetes in April 2011, at which time he reported upper extremity peripheral symptoms, but no lower extremity symptoms. 

There is no "intent to file" form of record prior to the March 2014 claim. Thus, the effective dates cannot be extended on that basis.

The Board finds that the preponderance of the evidence shows the Veteran did not file either an informal or a formal claim for benefits for lower extremity peripheral neuropathy prior to March 25, 2014. See Sellers, supra. No peripheral nerve claim could be incorporated into these earlier claims by reference to medical records. Cf. Shea, supra. The Veteran offers no argument or evidence in support of his appeal of this issue. See May 2021 Board Hearing Testimony. Consequently, an effective date prior to March 25, 2014, for such benefits is not warranted because there is no communication that may serve as an informal or formal claim for benefits that was received prior to such time. There being no doubt to resolve in the Veteran's favor, the appeal must be denied.

Diabetes Claims

The Veteran contends his symptoms of diabetes mellitus, with ED, are not contemplated by the currently assigned disability ratings. Specifically, he testified that he has had to increase his medications and take multiple insulin shots in a day. He also testified that he was told to be careful with his activities to avoid cuts, as they may get infected. After a review of the record, the Board finds that a claim for secondary service connection for diabetic nephropathy has been reasonably raised by the record in conjunction with his claim, and service connection for such disability is warranted. However, the Veteran's diabetes and ED symptoms are otherwise wholly considered by his currently assigned rating, and thus higher ratings are not warranted.

19. Entitlement to a disability rating in excess of 20 percent for diabetes.

The appeal period before the Board begins on March 25, 2014, the date VA received the Veteran's claim for an increased rating for diabetes, plus the one-year look-back period. See Gaston, supra.

Diabetes mellitus is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Such rating criteria provides that a 20 percent rating is warranted 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 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 Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).

Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913.

"Regulation of activities" is defined under Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Id. Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating; each criterion listed in a rating must be met or more closely approximated in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component.

With regard to the matter on appeal, the currently assigned 20 percent rating for the Veteran's diabetes was assigned based on his prescribed oral hypoglycemic agent, insulin, and restricted diet. However, in order to warrant the next higher rating of 40 percent, the evidence must reflect that, in addition to prescriptions for insulin and a restricted diet, he was also instructed to regulate his activities in order treat his diabetes mellitus.

In this regard, after a review of the record, the Board finds that a higher rating is not warranted as the record does not show his diabetes requires the regulation of occupational and recreational activities. Specifically, the Veteran underwent VA examinations for his diabetes during the period on appeal in August 2014. At that examination, it was noted that the Veteran's diabetes was treated by oral medication, insulin, and managed by a restricted diet but did not require regulation of activities. The examiners also noted that there were no episodes of hypoglycemic reactions or ketoacidosis. Further, the Veteran's treatment records do not include evidence that his diabetes required such regulation of activities.

Notably, the Veteran testified that he had been told to be careful when doing activities to avoid cuts that may get infected. See May 2021 Board Hearing Testimony. However, such advice, first is not reflected in the medical evidence of record, and second, does not equate to "regulation of activities" to control diabetes as contemplated by the ratings criteria.

Similar to the preceding section for peripheral neuropathy, the Board has also considered the July 2021 Fast Pace Urgent Care Clinic records noting skin sores on the anterior aspect of his left lower extremity. Like the peripheral neuropathy, these symptoms were not attributed to diabetes, nor was diabetes indicated in these records.  Moreover, the Veteran has not argued that his diabetes caused such sores. Thus, there is no evidence or argument of record that the Veteran's diabetes resulted in non-healing skin sores, and a rating for such as a complication of diabetes is not warranted.

Consequently, as the contemporaneous medical evidence fails to demonstrate that the Veteran's diabetes required regulation of activities, the Board finds that a rating in excess of 20 percent for such disability is not warranted. Further, at the present time, there is no evidence of any diabetic complications beyond those already service connected, and the diabetic nephropathy which will be discussed below.

20. Entitlement to service connection for diabetic nephropathy.

The Veteran has not argued that service connection is warranted for diabetic nephropathy. However, VA has a duty to read claims liberally and maximize benefits for veterans. In this regard, the record reflects that the Veteran has developed diabetic nephropathy, with the earliest evidence of record showing he was diagnosed with diabetic nephropathy in a September 2017 VA treatment record. Thus, the Board finds that entitlement to service connection for diabetic nephropathy has been reasonably raised by the record in connection with his claim for entitlement to an increased rating for diabetes. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

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) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is in receipt of service connection for diabetes. As noted above, the Veteran's medical records indicate he has a diagnosis of diabetic nephropathy due to diabetes. There being no competent medical evidence to the contrary, the Board finds that the evidence is at least in equipoise in favor of the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thus, the criteria for service connection are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).

21. Entitlement to a compensable rating for ED.

Erectile dysfunction is not specifically listed in the rating schedule. The most closely aligned rating criteria for the disability are found in Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b.

In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. For a compensable rating to be assigned for erectile dysfunction, the medical evidence must confirm deformity of the penis with loss of erectile power.

The medical evidence of record does not suggest that the Veteran has any deformity of the penis as part of his service-connected erectile dysfunction. On VA examinations in April 2011, July 2011, and August 2014 the Veteran did not have any penile deformity or abnormality.  The Veteran testified that he takes medication for his erectile dysfunction but did not contend a penile deformity or abnormality.

Based on the forgoing, entitlement to a compensable rating is denied. The Veteran is already in receipt of special monthly compensation for his erectile dysfunction, which compensates for the loss of a creative organ.

Accordingly, and for the foregoing reasons, the Board finds that, for the entire period on appeal, a preponderance of the evidence weighs against a finding that the Veteran is entitled to a compensable disability rating for his service-connected erectile dysfunction and the increased rating claim must be denied.

Other Considerations

The Board recognizes the Veteran's sincerely held belief that his symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. Notwithstanding, the Board has also considered the Veteran's statements and found them highly probative, resulting in partial increased ratings.

The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has otherwise been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted.

In reaching this decision, the Board has resolved all doubt in the Veteran's favor, which has resulted in a partial increased rating for CAD, restoration of a 20 percent rating for bilateral lower extremity peripheral neuropathy, and service connection for diabetic nephropathy; however, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran's claims, and as such, that doctrine is not applicable. Consequently, the claims for higher or separate ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for hypertension is remanded.

The Veteran contends he has hypertension that is due to exposure to Agent Orange from his service in Vietnam, or was caused or aggravated by his service-connected diabetes or PTSD. After a review of the record, a remand is necessary in order to obtain an etiological opinion.

In this regard, the record includes an April 2011 VA examination which noted a diagnosis of hypertension, but also that such was not a complication of diabetes. The opinion was supported by rational that hypertension was diagnosed ten years after diabetes. This rationale is not adequate for adjudication purposes as it gives no information to weigh against other opinions. See Stefl, supra.

Further, the Veteran contends hypertension is secondary to his service-connected PTSD. Notably, an April 2011 Memphis Heart Clinic treatment record notes that the Veteran cannot control hypertension, which causes severe anxiety, which in turn makes his blood pressure harder to control. This treatment record implies a relationship between his blood pressure and his mental health disabilities. Thus, an opinion is in order to resolve the claim.

Finally, the Veteran claims that his hypertension is directly related to service through his exposure to Agent Orange. The Veteran submitted the Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS), which found sufficient evidence of an association between hypertension and exposure to Agent Orange. There is no opinion of record concerning hypertension and its relationship to the Veteran's acknowledged Agent Orange exposure. Thus, a remand is necessary in order to obtain a medical opinion addressing such question.

2. Entitlement to service connection for a right knee disorder is remanded.

The Veteran contends that he has a current right knee disorder that either preexisted service and was aggravated therein, was caused by an in-service injury, or is secondary to his service-connected left knee disorder. After a review of the record, the Board finds a remand is necessary in order to obtain etiological opinions.

In this regard, the Veteran injured his right knee prior to service, requiring a meniscectomy in 1965. See January 1974 VA Examination. The Veteran's March 1969 entrance examinations include an orthopedic opinion noting the earlier operation and injury, as well as a later injury in 1967, and that x-rays showed slight narrowing of the joint. However, the orthopedic surgeon opined that the Veteran recovered satisfactorily from the injuries and he could perform physical activities. Th entrance examination also notes the Veteran had occasional buckling of the right knee. Thus, while the preexisting injury was noted on entrance, there is a question as to whether it had completely resolved prior to his service. The Veteran testified that he injured his knee in service multiple times, including requiring a cast. However, the service treatment records only note a complaint of pain in the right knee from May 1969. Parenthetically, the Veteran injured his left knee as described in his testimony.

The Veteran underwent a VA examination for his right knee in July 2014. At that time, the Veteran reported his right knee pain was exacerbated after his left knee replacement. The examiner opined, however, that the right knee disorder was less likely than not due to the left knee, noting that while increased strain may have occurred on the right knee due to compensating for left knee pain, it cannot be determined whether this caused the degree of arthritis present in the right knee.

Importantly, the degree of aggravation or causation of a disability secondary to a service-connected disability is only pertinent when rating the disability. Thus, the etiological opinion is inadequate, and a new opinion is necessary. In this regard, the physician requested to offer an opinion should also offer an opinion regarding whether the right knee disability had fully resolved prior to service; and if so, whether his current right knee disorder was related to his service, to include his complaints of pain, and if not, whether it was aggravated by such service.

3. Entitlement to service connection for bilateral hearing loss is remanded.

4. Entitlement to service connection for tinnitus is remanded.

The Veteran contends he has bilateral hearing loss and tinnitus that began in service or is otherwise due to acoustic noise trauma from service. After a review of the record, the Board finds a remand is necessary to obtain an etiological opinion. 

In this regard, the Veteran was afforded a VA examination for hearing loss and tinnitus in August 2014. Initially, the Board notes that the Veteran denied tinnitus at such time, but has since corrected the record and testified that he experiences recurrent tinnitus. Thus, no etiological opinion was provided at that time. As the Veteran has reported the presence of tinnitus, which he testified he first noticed in service after days with a lot of noise trauma, an opinion should be obtained regarding the etiology of tinnitus.

Further, the August 2014 VA examiner opined that bilateral hearing loss was less likely than due to service. The examiner supported the opinion by noting that the separation examination revealed normal hearing, with decibel threshold levels of zero at every hertz. However, such opinion is inadequate. In this regard, the examiner relied on the lack of hearing loss at separation testing only. See Hensley v. Brown, 5 Vet. App. 155 (1993), (a veteran who left service with hearing within normal limits on audiometric testing at separation was not precluded, as a matter of law, from establishing service connection for hearing loss). While a VA examiner is allowed to consider audiology test results from entrance to and separation from service, and, based on his or her knowledge, experience, and judgment, could conclude that noise-induced hearing loss had not been shown to manifest years after the offending noise had ceased, such a medical opinion required a full supporting rationale, and could not just rely on the separation examination results. Id. Here, the examiner did not address the Veteran entrance examination audiometric findings, which noted negative decibel threshold levels for most hertz ranges, thus showing a possible threshold shift from entrance to separation. Consequently, a new opinion is necessary to adequately address the Veteran's claim.

5. Entitlement to a TDIU due to service-connected disabilities is remanded.

Finally, the Veteran also contends that his service-connected disabilities preclude him from securing and following substantially gainful employment. However, as any decision regarding the claims for restoration of benefits, as well as for service connection hypertension, a right knee disorder, bilateral hearing loss, and tinnitus could impact the outcome of the Veteran's entitlement to a TDIU, this claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined). Similarly, the Board has herein granted service connection for diabetic nephropathy, which requires a rating to be assigned by the AOJ. The adjudication of the TDIU claim should be deferred pending such action by the AOJ.

The matters are REMANDED for the following action:

1. Obtain updated VA and private treatment records.

2. Forward the record to an appropriate VA clinician in order to provide an etiological opinion concerning hypertension. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion.

The examiner should offer an opinion as to the following:

a.	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is related to his acknowledged in-service exposure to herbicide agents. 

In offering such opinion, the examiner should consider the fact that the NAS IOM recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure.

b.	If the first opinion is negative, then the clinician should opine as to whether hypertension was at least as likely as not caused by his service-connected PTSD.

c.	If the first opinion is negative, then the clinician should opine as to whether hypertension was at least as likely as not aggravated (worsened) by his service-connected PTSD.

d.	If the first opinion is negative, then the clinician should opine as to whether hypertension was at least as likely as not caused by his service-connected diabetes mellitus.

e.	If the first opinion is negative, then the clinician should opine as to whether hypertension was at least as likely as not aggravated (worsened) by his service- diabetes mellitus.

For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.

A rational should accompany all opinions offered.

3. Forward the record to an appropriate VA clinician in order to provide an etiological opinion concerning a right knee disorder. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion.

The examiner should offer an opinion as to the following:

a.	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's pre-existing right knee disability, which was noted on entrance into service, had fully resolved prior to service.

b.	If the disorder has fully resolved prior to service, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's current right knee disorder is related to his active service, to include the complaint of pain in May 1969.

c.	If the pre-existing right knee disorder did not fully resolve, the examiner should offer an opinion as to whether there is clear and unmistakable evidence that the pre-existing knee disorder was NOT aggravated beyond the natural progression of the disease by his active service.

d.	If the above opinions are negative, the examiner should offer an opinion as to whether the right knee disorder was at least as likely as not caused or aggravated by his service-connected left knee disability.

For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.

A rationale for any opinion offered should be provided.

4. Forward the record to an appropriate VA clinician in order to provide an etiological opinion concerning bilateral hearing loss and tinnitus. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion.

The examiner should offer an opinion as to the following:

a.	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss had onset in, or was otherwise related to, his active service, to include due to his in-service noise exposure.

b.	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tinnitus had onset in, or was otherwise related to, his active service, to include due to his in-service noise exposure.

In offering such opinions, the examiner must address the significance of any in-service audiometric threshold shifts.

A rationale for any opinion offered should be provided. 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonathan M. Estes

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.