Citation Nr: 21071520 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-41 224 DATE: November 30, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia is denied. Entitlement to an initial disability rating in excess of 10 percent for instability of the left knee is denied. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea, is granted. Entitlement to service connection for hypertension, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus, is granted. Entitlement to service connection for renal nephropathy, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus, is granted. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus, is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus, is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to his now service-connected diabetes mellitus, is granted. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ is granted. Entitlement to compensation for obstructive and restrictive pulmonary disease under the provisions of 38 U.S.C. § 1151 is moot and dismissed. Entitlement to compensation for chronic kidney dysfunction under the provisions of 38 U.S.C. § 1151 is moot and dismissed. REMANDED Compensation under the provisions of 38 U.S.C. § 1151 for 7th rib resection due to VA treatment is remanded. Entitlement to service connection for muscle group damage (chest wall and chest cavity), MG XXI, is remanded. Compensation under the provisions of 38 U.S.C. § 1151 for retention of a metallic clip due to VA treatment is remanded. Entitlement to service connection for a disability related to retention of a metallic clip is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left knee has not been manifested by flexion limited to 30 degrees, even when considering painful motion, and extension was better than 10 degrees. The Veteran's left knee exhibits no worse than mild recurrent subluxation or lateral instability. There is no meniscus disability or ankylosis to warrant a higher disability rating. 2. The evidence is at least in equipoise as to whether the Veteran's diabetes mellitus is attributed to his service-connected obstructive and restrictive pulmonary disease with sleep apnea. 3. The evidence is at least in equipoise as to whether the Veteran's hypertension is attributed to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. 4. The evidence is at least in equipoise as to whether the Veteran's renal nephropathy is attributed to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. 5. The evidence is at least in equipoise as to whether the Veteran's bilateral upper extremity peripheral neuropathy is attributed to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. 6. The evidence is at least in equipoise as to whether the Veteran's bilateral lower extremity peripheral neuropathy is attributed to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. 7. Giving him the benefit of the doubt, the Veteran's erectile dysfunction is attributed to his now service-connected diabetes mellitus. 8. The Veteran's erectile dysfunction is manifested by loss of erectile power. 9. Service connection for obstructive and restrictive pulmonary disease as secondary to removal of bronchogenic cyst was granted by the RO in a July 2006 rating decision; an earlier effective date of June 6, 2001 was subsequently effectuated in a September 2010 rating decision. 10. There is no additional disability for obstructive and restrictive pulmonary disease contemplated in the Veteran's claim under 38 U.S.C. § 1151, beyond that which has already been service connected in the July 2006 rating decision. 11. Service connection for a kidney disability is granted in the decision below. There is no additional disability for a kidney disability contemplated in the Veteran's claim under 38 U.S.C. § 1151, beyond that which has already been service connected in this Board decision. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left knee chondromalacia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5257. 2. The criteria for an initial disability rating in excess of 10 percent for instability of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for renal nephropathy are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for bilateral upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for SMC based upon loss of use of a creative organ have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. 10. The claim for compensation under 38 U.S.C. § 1151 for obstructive and restrictive pulmonary disease is moot. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. 11. The claim for compensation under 38 U.S.C. § 1151 for chronic kidney dysfunction is moot. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to October 1981, and from July 1982 to October 1984. This case was previously before the Board in November 2018, when the issues listed above were remanded for additional development. A September 2020 supplemental statement of the case was most recently issued and the claims are once again before the Board. The Board notes that there are various privacy requests located in the file. The Veteran, who is self-represented, most recently stated in October 2021 telephonic correspondence with the VA that he was no longer requesting copies of the records. Increased Ratings 1. Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for instability of the left knee is denied. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular Diagnostic Code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DCs). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. The Veteran is currently service connected for left knee chondromalacia. He is currently rated as 10 percent disabling under DCs 5003-5257 for the entire period on appeal. He is additionally service-connected for left knee instability. He is currently rated as 10 percent disabling under DC 5257 for the entire period on appeal. Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 have not been revised during the pendency of this claim. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under the new rating criteria effective February 7, 2021, Diagnostic Code 5003 remained largely unchanged as the main revision was only the title of the code to "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5010 was revised for "post-traumatic arthritis," by removing the instruction to rate as degenerative arthritis under 5003 and directing that traumatic arthritis be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." The rating criteria for Diagnostic Code 5257 were revised February 7, 2021. Under the former rating criteria prior to February 7, 2021, DC 5257 rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5257, removes the "severe," "moderate," and "slight" language for recurrent subluxation or lateral instability and adds rating for patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. As the former diagnostic criteria for 5257 did not require objective evidence of instability, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran and as such will apply only the former criteria. Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DCs 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable. Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. As the Veteran does not have genu recurvatum, this diagnostic code is not applicable. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran was afforded VA examinations in January 2011 and August 2020. At a January 2011 VA examination the Veteran reported knee pain. He reported giving way, stiffness, weakness, incoordination, decreased speed of joint motion, swelling and tenderness. A physical examination revealed an antalgic gait. The examiner noted bony joint enlargement, crepitus, deformity, effusion, tenderness, pain at rest, instability, weakness, abnormal motion and guarding of movement. The examiner found mild instability of the knee. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees. There was objective evidence of pain with active motion. No joint ankylosis was noted. The examiner noted that there was no additional limitation of motion after three repetitions of range of motion. The Veteran was diagnosed with left knee degenerative joint disease with chondrocalcinosis. The Veteran underwent a VA examination in August 2020. He was diagnosed with left knee chondromalacia. The Veteran reported that his knee gives out, buckles, pops and cracks and he has a decreased ability to walk. The Veteran reported the use of a cane at times and Ace wraps for support and pain support. The Veteran also reported the use of icy hot compresses. He reported that he has more difficulty going downstairs than going up. Range of motion testing revealed flexion to 75 degrees and extension to 0 degrees. The examiner noted pain that causes functional loss, including pain with walking or stairs and difficulty sitting to standing. There was evidence of pain with weight bearing. Range of motion following repetitive testing revealed flexion to 65 degrees and extension to 0 degrees. Following repeated use over time the examiner noted that his flexion would be down to 55 degrees with extension to 0 degrees. The examiner noted no joint ankylosis. Joint stability testing was completed. The examination revealed normal findings. No shin splints or other tibial or fibular impairment were observed. The examiner noted no meniscus condition. The occasional use of an Ace wrap and a cane were noted. The Board has additionally reviewed the Veteran's outpatient treatment records. An April 2002 x-ray revealed no evidence of acute fracture or dislocation of the left knee. An April 2002 private treatment orthopedics consult was reviewed. The Veteran reported that his knee had become more symptomatic especially going up hills or getting up and down out of a chair. It was noted that he had no knee joint tenderness and had no ligamentous instability about his knees. At a May 2002 VA treatment visit the Veteran reported that his left knee does give out at times. The examiner diagnosed the Veteran with left knee instability. In a July 2002 VA treatment visit it was noted that the Veteran had a history of left knee instability. It was noted that an MRI had been done which showed some degenerative meniscal changes but no tears. December 2012 and August 2005 VA treatment records noted a history of left knee instability. An August 2008 VA treatment record noted that the Veteran had knee pain and he was being sent to get an x-ray. The treating practitioner noted that the Veteran was going to get a cane because he was limping quite a bit. As noted above, the Veteran is currently in receipt of a 10 percent rating for his left knee under DCs 5003-5257. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. The Board finds that the preponderance of the evidence of record is against an initial rating in excess of 10 percent for the left knee disability under DCs 5260 and 5261. First, range of motion findings of the left knee do not support the award of a 20 percent rating under DC 5260 or a separate compensable rating under DC 5261. Here, flexion of the Veteran's left knee was, at its highest degree of severity, limited to 55 degrees, and extension was to zero degrees. To meet the criteria for a 20 percent rating under DC 5260, flexion would have to be limited to 30 degrees. To receive a separate compensable rating for extension under DC 5261, extension would have to be limited to 10 degrees. The Board has considered whether a higher disability evaluation for the left knee is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran has consistently complained of pain in his left knee. Nevertheless, on range of motion testing of the left knee, the Veteran was consistently able to complete repetitive motion testing and flexion has been greater than 30 degrees. As such, there has not been a showing that the Veteran's range of motion in the left knee is so functionally limited as to warrant a higher rating under DC 5260 (flexion) or a separate compensable rating under DC 5261 (extension). The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5257 for left knee instability. He has already received a 10 percent rating for this under DC 5257 for the entire period on appeal. The evidence above reflects the use of a knee brace and the prescription of a cane for his left knee. As noted above, the Veteran reported his knee giving way. The evidence above has at most categorized his instability as "mild" in nature, and this is consistent with the 10 percent rating already assigned to the Veteran for the duration of the almost 20 year appeal period. The Board finds that the criteria for a 20 percent rating under DC 5257 have not been met. The evidence does not demonstrate moderate recurrent subluxation or lateral instability to warrant a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As the evidence does not reflect ankylosis of the left knee, a higher rating under DC 5256 for ankylosis of the left knee is also not warranted. See 38 C.F.R. § 4.71(a), Diagnostic Code 5256. A higher rating is also not warranted for the left knee under either DC 5258 or 5259 as there is no record of any meniscus issue that would meet the criteria for a rating under these diagnostic codes. As such, a separate rating for the left knee under DC 5258 and 5259 have not been met. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's left knee disability does not more closely approximate a higher rating under Diagnostic Codes 5003-5257 or a separate disability rating aside from the 10 percent rating already awarded for his left knee instability under Diagnostic Code 5257. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea. The Veteran alleges that he suffers from diabetes mellitus, to include as secondary to his service-connected obstructive and restrictive pulmonary disease with sleep apnea. The Veteran underwent a December 2011 evaluation by a private physician. He opined that it was at least as likely as not that the Veteran's diabetes mellitus was secondary to his mixed lung disease. The examiner then provided his rationale for his opinion. In providing his opinion the examiner stated that he was considering the Veteran's lay statements and the objective findings/imaging tests/diagnoses. The private physician noted some medical studies. His curriculum vitae was attached. This examination and opinion were supported by medical evidence and were completed following a review of the record and evaluation of the Veteran. The record additionally includes an April 2013 VA examination. A negative secondary opinion was provided; however, secondary aggravation was not addressed. The Board has additionally considered an April 2001 letter from a VA treating physician that seems to attribute his diabetes in part to nonservice-connected anxiety and stress. The Board has considered in detail the extensive medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current diabetes mellitus and his service-connected obstructive and restrictive pulmonary disease with sleep apnea. As all elements of service connection have been satisfied, service connection for diabetes mellitus on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(d), 3.310. As the Board is granting service connection for diabetes mellitus on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for diabetes mellitus on a direct basis, to include vague allegations of herbicide exposure. See June 2005 allegations. The nature and extent of this disorder is not before the Board at this time. 4. Entitlement to service connection for hypertension to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus. The Veteran alleges that he suffers from hypertension, to include as secondary to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus. Most recently, the Veteran underwent a December 2011 evaluation by a private physician. He opined that it was at least as likely as not that the Veteran's hypertension was secondary to his mixed lung disease. The examiner then provided his rationale for his opinion. In providing his opinion the examiner stated that he was considering the Veteran's lay statements and the objective findings/imaging tests/diagnoses. The private physician noted some medical studies. His curriculum vitae was attached. This examination and opinion were supported by medical evidence and were completed following a review of the record and evaluation of the Veteran. Further supporting his claim is an April 2013 VA Diabetes Examination. The examiner specifically noted that it is at least as likely as not that the Veteran has hypertension due to diabetes mellitus. The connection between his now service-connected diabetes mellitus and his claimed hypertension is further supported in a December 2004 letter from his VA treating physician. She noted that the Veteran has several complications of diabetes, including hypertension. The record additionally includes an April 2013 general opinion regarding whether hypertension was at least as likely as not related to his service-connected obstructive and restrictive pulmonary disease. Although a secondary opinion was provided, secondary aggravation was not addressed. 38 C.F.R. § 3.310(b). This opinion is accorded little probative value. The Board has additionally considered an April 2001 letter from a VA treating physician that seems to attribute his hypertension in part to nonservice-connected anxiety and stress. A December 2016 VA treatment record noted that the Veteran had pulmonary hypertension which could be related to COPD. No further explanation was provided. The Board has considered in detail the extensive medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current hypertension and his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. As all elements of service connection have been satisfied, service connection for hypertension on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for hypertension on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for hypertension on a direct basis. The nature and extent of this disorder is not before the Board at this time. 5. Entitlement to service connection for renal nephropathy to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes. The Veteran alleges that he suffers from renal nephropathy, to include as secondary to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus. The Veteran underwent a December 2011 evaluation by a private physician. He opined that it was at least as likely as not that the Veteran's nephropathy was secondary to his mixed lung disease. The examiner then provided his rationale for his opinion. In providing his opinion the examiner stated that he was considering the Veteran's lay statements and the objective findings/imaging tests/diagnoses. The private physician noted some medical studies. His curriculum vitae was attached. This examination and opinion were supported by medical evidence and were completed following a review of the record and evaluation of the Veteran. Further supporting his claim is an April 2013 VA Diabetes Examination. The examiner specifically noted that the Veteran has diabetic nephropathy or renal dysfunction caused by diabetes mellitus. The connection between his now service-connected diabetes mellitus and his claimed nephropathy is further supported in a December 2004 letter from his VA treating physician. She noted that the Veteran has several complications of diabetes, including nephropathy. The record additionally includes an April 2013 general opinion regarding whether nephropathy was at least as likely as not related to his service-connected obstructive and restrictive pulmonary disease. Although a secondary opinion was provided, secondary aggravation was not addressed. 38 C.F.R. § 3.310(b). This opinion is accorded little probative value. Rather, the examiner attributed his diagnosis to diabetes mellitus. Moreover, there is a speculative statement, dated April 2012, in which it is noted that the Veteran had diabetes mellitus and his lab tests show a protein in his urine which may be an early sign of damage to his kidneys. The Board has considered in detail the extensive medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current nephropathy and his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. As all elements of service connection have been satisfied, service connection for renal nephropathy on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for renal nephropathy on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for renal nephropathy on a direct basis. The nature and extent of this disorder is not before the Board at this time. 6. Entitlement to service connection for bilateral upper extremity neuropathy to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes. 7. Entitlement to service connection for bilateral lower extremity neuropathy to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes. The Veteran alleges that he suffers from bilateral upper extremity neuropathy and bilateral lower extremity neuropathy, to include as secondary to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus. Most recently, the Veteran underwent a December 2011 evaluation by a private physician. He opined that it was at least as likely as not that the Veteran's neuropathy was secondary to his mixed lung disease. The examiner then provided his rationale for his opinion. In providing his opinion the examiner stated that he was considering the Veteran's lay statements and the objective findings/imaging tests/diagnoses. The private physician noted some medical studies. His curriculum vitae was attached. This examination and opinion were supported by medical evidence and were completed following a review of the record and evaluation of the Veteran. Further supporting his claim is an April 2013 VA Diabetes Examination. The examiner specifically noted that the Veteran has diabetic neuropathy caused by diabetes mellitus. The connection between his now service-connected diabetes mellitus and his claimed neuropathy is further supported in a December 2004 letter from his VA treating physician. She noted that the Veteran has several complications of diabetes, including peripheral neuropathy. The record additionally includes an April 2013 general opinion regarding whether neuropathy was at least as likely as not related to his service-connected obstructive and restrictive pulmonary disease. Although a secondary opinion was provided, secondary aggravation was not addressed. 38 C.F.R. § 3.310(b). This opinion is accorded little probative value. Rather, the examiner attributed his diagnosis to diabetes mellitus. The Board has considered in detail the extensive medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current bilateral upper and lower extremities neuropathy and his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or now service-connected diabetes mellitus. As all elements of service connection have been satisfied, service connection for neuropathy on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for bilateral upper extremity neuropathy and bilateral lower extremity neuropathy on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for bilateral upper extremity neuropathy and bilateral lower extremity neuropathy on a direct basis. The nature and extent of this disorder is not before the Board at this time. 8. Entitlement to service connection for erectile dysfunction to include as secondary to service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes. The Veteran alleges that he suffers from erectile dysfunction, to include as secondary to his service-connected obstructive and restrictive pulmonary disease with sleep apnea and/or his now service-connected diabetes mellitus. Supporting his claim is an April 2013 VA Diabetes Examination. The examiner specifically noted that the Veteran has erectile dysfunction that is at least as likely as not due to diabetes mellitus. The connection between his now service-connected diabetes mellitus and his claimed erectile dysfunction is further supported in a December 2004 letter from his VA treating physician. She noted that the Veteran has several complications of diabetes, including erectile dysfunction. The record additionally includes an April 2013 general opinion regarding whether erectile dysfunction was at least as likely as not related to his service-connected obstructive and restrictive pulmonary disease. Although a secondary opinion was provided, secondary aggravation was not addressed. 38 C.F.R. § 3.310(b). This opinion is accorded little probative value. Rather, the examiner attributed his diagnosis to diabetes mellitus. Resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current erectile dysfunction and his now service-connected diabetes mellitus. As all elements of service connection have been satisfied, service connection for renal nephropathy on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for erectile dysfunction on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for erectile dysfunction on a direct basis. The nature and extent of this disorder is not before the Board at this time. 9. Entitlement to SMC for loss of use of a creative organ. VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). As the Veteran has been granted service connection for erectile dysfunction, the Board finds that SMC under 38 U.S.C. § 1114(k) is also warranted. 38 U.S.C. § 1151 10. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for obstructive and restrictive pulmonary disease due to VA treatment. In July 2006, the RO issued a rating decision granting service connection for obstructive and restrictive pulmonary disease as secondary to removal of bronchogenic cyst. An earlier effective date of June 6, 2001 was subsequently effectuated in a September 2010 rating decision. The Veteran has now perfected a claim for the same disability under the provisions of 38 U.S.C. § 1151. In order for the Veteran to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied. As noted above, the Veteran has already been granted service connection for obstructive and restrictive pulmonary disease, which is the benefit sought under this 38 U.S.C. § 1151 claim. Moreover, compensation for service-connected disability is a greater benefit than compensation under 38 U.S.C. § 1151. See Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010) (examining the different ancillary benefits available to service-connected veterans compared to those receiving compensation under section 1151 and observing that section 1151 does not accord service-connected status to a veteran's disability or death). Thus, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for his obstructive and restrictive pulmonary disease because if any additional disability was incurred from VA medical treatment thereof, he would already be compensated for such residuals. See 38 U.S.C. §§ 7104, 7105(d)(5). Simply put, due to the grant of service connection for obstructive and restrictive pulmonary disease, the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for that same disability is moot and is dismissed. Finally, the Board notes that the Veteran has already been awarded an effective date of June 6, 2001 for this disability. This effective date is the earliest effective date available to the Veteran; it is the same date as the underlying disability that his obstructive and restrictive pulmonary disease was granted as secondary to back in the July 2006 rating decision. Accordingly, the Veteran's claim under this theory of entitlement is dismissed. 11. Compensation under the provisions of 38 U.S.C. § 1151 for chronic kidney dysfunction due to VA treatment. Title 38, United States Code, Section 1151 provides that where a veteran suffers an injury or aggravation of an injury resulting in additional disability by reason of VA medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service-connected. See 38 C.F.R. §3.361. As noted above, the Board has granted service connection for renal nephropathy. As service connection has been granted, consideration of the Veteran's claim for a kidney disability under the provisions of 38 U.S.C. § 1151 is moot. Therefore, a discussion of the August 2020 VA opinion and conflicting July 2012 private opinion addressing entitlement to benefits under § 1151 is unnecessary at this time. Accordingly, the Veteran's claim under this theory of entitlement is dismissed. REASONS FOR REMAND Unfortunately, further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Compensation under the provisions of 38 U.S.C. § 1151 for 7th rib resection due to VA treatment is remanded. January 1985 treatment records reflect that the Veteran underwent a left thoracotomy to excise a posterior-mediastinal mass. A January 1986 letter from a radiologist reflected that the Veteran had a sectioned left 7th rib following thoracotomy with adequate union of these segments. A January 2010 chest X-ray reflects a left posterior 7th rib deformity and a metallic clip in the left suprahilar region. In a December 2004 VA examination, the examiner noted that the Veteran had episodic pain and muscle spasm over the area of the previous surgery over the left seventh rib in the anterior and lateral aspect. It was noted that this surgery was one in 1985 for a benign tumor of the pleura. The examiner noted that these symptoms are very minimally impairing and are residuals of that surgery for a pleural tumor. He noted that the pain is due to a scarring tissue deformity and the resultant fatty infiltration and hypertrophy of the left rectus abdominus muscle. The Board notes that the Veteran was granted service connection for a scar and 7th rib resection, residuals of removal of bronchogenic cyst in a July 2006 rating decision. It is unclear from the record whether the Veteran has an additional disability of the 7th rib that warrants service connection. A VA medical examination is warranted to see if the Veteran has a disability of the 7th rib not already considered by the service-connected disability of a scar. 2. Entitlement to service connection for muscle group damage (chest wall and chest cavity), MG XXI, is remanded. A May 2006 VA examination report noted that the Veteran had symptoms of left-sided chest pain, muscle spasm on the left chest wall, which are secondary to or residuals of surgery to removal of bronchogenic cyst. An April 2006 private treatment report notes that the Veteran has local left chest pain and left chest muscle spasms due to the surgical removal of a cyst. A December 2004 VA examination report noted left anterior chest pain as a residual of prior surgery. The examiner seems to attribute the pain to scarring of the tissue. As noted above, the Veteran was granted service connection for a scar and 7th rib resection, residuals of removal of bronchogenic cyst in a July 2006 rating decision. It is unclear from the record whether the Veteran has an additional disability of muscle group damage (chest wall and chest cavity) that warrants service connection. A VA medical examination is warranted to see if the Veteran has a disability of muscle group damage (chest wall and chest cavity) not already considered by the service-connected disability of a scar. 3. Compensation under the provisions of 38 U.S.C. § 1151 for retention of a metallic clip due to VA treatment is remanded. 4. Entitlement to service connection for a disability related to retention of a metallic clip is remanded. An April 2009 CT of the thorax reflects a surgical clip that overlies the posterior aspect of the left 7th rib. A January 2010 chest X-ray reflects that a metallic clip is seen in the left suprahilar region. It is unclear if the Veteran has a disability related to the metallic clip. The Board finds that a VA examination and opinion are necessary to adjudicate this claim. The matters are REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination to determine the nature of any disability related to his 7th rib resection (separate from his service-connected scar and 7th rib resection, residuals of removal of bronchogenic cyst) found to be present. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. If the examiner finds that the Veteran has a disability of the 7th rib separate from any disability which is already service-connected, the VA examiner is asked to address the following questions: (a) Does the Veteran have additional disability of the 7th rib due to the January 1985 surgery by the VA? (b) If the answer to the above question is Yes, is the additional disability due to: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing the treatment; or (2) an event not reasonably foreseeable. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 2. Arrange for the Veteran to undergo a VA examination to determine the nature of any muscle group damage (chest wall and chest cavity), MG XXI (separate from his service-connected scar and 7th rib resection, residuals of removal of bronchogenic cyst) found to be present. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. If the examiner finds that the Veteran has a disability of the muscle group damage (chest wall and chest cavity), MG XXI, separate from any disability which is already service-connected, the VA examiner is asked to address the following questions: (a) Does the Veteran have additional disability of the muscle group damage (chest wall and chest cavity), MG XXI, due to the January 1985 surgery by the VA? (b) If the answer to the above question is Yes, is the additional disability due to: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing the treatment; or (2) an event not reasonably foreseeable. If the examiner finds that the Veteran has a disability of the muscle group damage (chest wall and chest cavity), MG XXI, separate from any disability which is already service-connected, the VA examiner is also asked to address the following questions: (a) Whether it is at least as likely as not that the Veteran's disability of the muscle group damage (chest wall and chest cavity), MG XXI, was caused by a service-connected disability. (b) Whether it is at least as likely as not that the Veteran's disability of the muscle group damage (chest wall and chest cavity), MG XXI, was aggravated by a service-connected disability. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. Arrange for the Veteran to undergo a VA examination to determine the nature of any disability related to retention of a metallic clip found to be present. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. If the examiner finds that the Veteran has a disability of due to the retention of a metallic clip the VA examiner is asked to address the following questions: (a) Does the Veteran have additional disability due to the January 1985 surgery by the VA? (b) If the answer to the above question is Yes, is the additional disability due to: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing the treatment; or (2) an event not reasonably foreseeable. (Continued on next page) All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.