Citation Nr: 21005295 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 20-19 611 DATE: February 1, 2021 ORDER The rating reduction from 60 percent to 0 percent (noncompensable) for bilateral hearing loss, effective April 1, 2019, was not proper and the appeal for restoration of the 60 percent rating is therefore granted, subject to the laws and regulations governing the payment of monetary awards. A rating higher than 20 percent for diabetes is denied. A rating higher than 20 percent for right upper extremity diabetic peripheral neuropathy is denied. A rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy is denied. A rating higher than 40 percent for right lower extremity diabetic peripheral neuropathy is denied. A rating higher than 40 percent for left lower extremity diabetic peripheral neuropathy is denied. A compensable rating for erectile dysfunction is denied. An earlier effective date for a 20 percent rating for diabetes is dismissed. Prior to November 2, 2018, a separate compensable rating for diabetic peripheral neuropathy of the right upper extremity, is denied. Prior to November 2, 2018, a separate compensable rating for diabetic peripheral neuropathy of the left upper extremity, is denied. Prior to November 2, 2018, a separate compensable rating for diabetic peripheral neuropathy of the right lower extremity, is denied. Prior to November 2, 2018, a separate compensable rating for diabetic peripheral neuropathy of the left lower extremity, is denied. Prior to November 2, 2018, a separate rating for erectile dysfunction, is denied. Prior to November 2, 2018, special monthly compensation (SMC) based on loss of use of a creative organ, is denied. REMANDED A rating higher than 60 percent for bilateral hearing loss. A total disability rating based on individual unemployability (TDIU). SMC at a higher rate. Eligibility to Dependents’ Educational Assistance (DEA) prior to November 2, 2018. FINDINGS OF FACT 1. The reduction in evaluation from 60 percent to noncompensable from April 1, 2019, for bilateral hearing loss was not proper. 2. The Veteran’s diabetes does not require one or more daily injection of insulin, restricted diet, and regulation of activities. 3. The Veteran’s diabetic peripheral neuropathy of the right and left upper extremity is manifested by no more than mild incomplete paralysis. 4. The Veteran’s diabetic peripheral neuropathy of the right and left lower extremity is manifested by no more than moderately severe incomplete paralysis. 5. The Veteran has erectile dysfunction, but no penile deformity; he is in receipt of SMC based on loss of use of a creative organ due to erectile dysfunction. 6. The claim for an earlier effective date for the rating for diabetes is a freestanding earlier effective date claim. 7. Diabetic peripheral neuropathy of the right or left upper extremity to a compensable degree is not shown within one year prior to November 2, 2018. 8. Diabetic peripheral neuropathy of the right or left lower extremity to a compensable degree is not shown within one year prior to November 2, 2018. 9. Erectile dysfunction due to diabetes for a separate rating is not shown within one year prior to November 2, 2018. 10. The award of SMC based on loss of use of a creative organ was based on the grant of service connection erectile dysfunction associated with service-connected diabetes from November 2, 2018. CONCLUSIONS OF LAW 1. The reduction of the evaluation for bilateral hearing loss from 60 percent to noncompensable, effective April 1, 2019, is void ab initio. 38 C.F.R. § 1155; 38 C.F.R. § 3.344. 2. The criteria for a rating in excess of 20 percent for diabetes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. 3. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8513. 4. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8513. 5. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 7. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.115b, DC 7522. 8. The Board does not have jurisdiction over the freestanding claim for an earlier effective date for a 20 percent rating for diabetes. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 9. The criteria for a compensable rating for diabetic peripheral neuropathy of the right upper extremity, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 10. The criteria for a compensable rating for diabetic peripheral neuropathy of the left upper extremity, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 11. The criteria for a compensable rating for diabetic peripheral neuropathy of the right lower extremity, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 12. The criteria for a compensable rating for diabetic peripheral neuropathy of the left lower extremity, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 13. The criteria for a separate rating for erectile dysfunction, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 14. The criteria for SMC based on loss of use of a creative organ, prior to November 2, 2018, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to October 1974. The case is on appeal from a January 2019 rating decision. In September 2019, the Veteran appointed J. Michael Woods as his representative via an executed VA Form 21-22a. Subsequent to the May 2020 certification of the Veteran’s appeal to the Board, in correspondence dated in July 2020, the Veteran’s representative submitted a motion to withdraw services as the Veteran’s representative. Pursuant to 38 C.F.R. § 20.608(b)(2), after an appeal has been certified to the Board, a representative may not withdraw services as a representative unless good cause is shown on motion, and the motion must be in writing and must comply with the criteria set forth in 38 C.F.R. § 20.608(b)(2). In accordance with this regulatory provision, as good cause for this motion, the attorney indicated that various factors made continued representation impossible, impractical, or otherwise unethical. 38 C.F.R. § 20.608(b)(2). The July 2020 motion also certified that a copy of the motion was sent via first-class mail, postage prepaid, to the Veteran. The Veteran has not responded. As the Board finds that good cause has been shown for withdrawal of representation, the motion is granted. See 38 C.F.R. § 20.608(b). As the Veteran has not responded, the Board will consider the Veteran to have opted to proceed unrepresented. With respect to bilateral hearing loss, procedurally, the Board notes that although the Veteran appealed the propriety of the rating reduction in the January 2019 rating decision, the Veteran’s February 2013 increased rating claim for hearing loss remains pending for the reasons discussed in the remand section. As such, the issues are separately listed. Because the Board is restoring the 60 percent rating for bilateral hearing loss in the decision below, any effective date claim as to when such reduction took effect is moot. Therefore, the issue will not be addressed further. By rating decision in March 2020, the ratings for right and left lower extremity diabetic peripheral neuropathy were increased to 40 percent. As the increases did not satisfy the appeal in full, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that although the RO bifurcated the issue of a TDIU and it was separately appealed, see February 2020 rating decision, a TDIU was raised during the administrative appeal of the Veteran’s claim for a higher rating for hearing loss, see March 2015 claim; August 2015 VA 21-4138 Statement in Support of Claim, and it is, therefore, part and parcel of the higher rating hearing loss claim. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The issue with respect to the rating reduction for hearing loss, as well as the higher rating and effective date claims for diabetes, diabetic peripheral neuropathy of the upper and lower extremities, erectile dysfunction, and SMC based on loss of use of a creative organ, are addressed in the decision below. The issue of a higher rating for bilateral hearing loss, as well as a TDIU, SMC at a higher rate, and eligibility to DEA prior to November 2, 2018, are addressed in the remand section. Although the Board is remanding the issues with respect to a higher rating for bilateral hearing loss, a TDIU, SMC at a higher rate, and eligibility to DEA prior to November 2, 2018, for additional development, remand is not necessary for any of the other claims, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Whether the rating reduction from 60 percent to 0 percent (noncompensable) for bilateral hearing loss, effective April 1, 2019, was proper. Without reaching the merits of the propriety of the reduction in this case, the Board finds that the reduction is void ab initio due to the Regional Office’s (RO’s) failure to adequately follow the procedural requirements set forth in 38 C.F.R. § 3.105(e), regarding reduction in benefits. The failure deprived the Veteran of adequate due process protections in this case. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given sixty days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In addition, the beneficiary must be informed that he or she will have an opportunity for a predetermination hearing, provided that the request for a hearing is received within thirty days of such notice; if a predetermination hearing is timely requested, benefits payments shall be continued at the previously established level pending a final determination concerning the proposed action. See 38 C.F.R. § 3.105(i). In the January 2019 rating decision on appeal, the 60 percent rating for bilateral hearing loss, in effect since 2005, was reduced to noncompensable, effective April 1, 2019. The decision notes that the Veteran was notified of the proposed reduction in an April 2017 predetermination letter. However, the April 2017 letter does not indicate the date of the rating decision proposing the reduction, and a copy of the rating decision noted to be enclosed is not associated with the letter. The Board notes that although a May 2015 rating decision proposed a reduction in the 60 percent rating for bilateral hearing loss, the RO determined that the Veteran was not properly notified of the proposed reduction. See August 2016 deferred rating decision; May 2016 rating decision. This is a favorable finding made by the RO. Moreover, the January 2019 rating decision reflects that the rating reduction was based on the Veteran’s November 2018 claim, noting the proposed reduction referenced in the April 2017 predetermination letter was never correctly finalized. In view of the foregoing, the Board finds that the Veteran was not properly notified of the proposed reduction prior to the reduction in benefits finalized in the January 2019 rating decision. Because the RO failed to afford the Veteran notice of the proposed reduction, outlining the reasons for the reduction, prior to finalization of the reduction in benefits in the January 2019 rating decision, the reduction in this case was not proper. Accordingly, the Board finds that the reduction in this case is void ab initio and the Veteran’s prior 60 percent rating for service-connected bilateral hearing loss is restored. Higher Ratings A. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Under DC 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power. See 38 C.F.R. § 4.115b. Under DC 7913, a 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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 when diabetes requires 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913 (Note 1). Under DC 8513, a 20 percent rating is assigned for mild incomplete paralysis of all radicular groups of the major and minor extremity. A 30 percent evaluation is assigned for moderate incomplete paralysis of the minor extremity and a 40 percent rating is assigned for the major extremity. A 60 percent rating is assigned for severe incomplete paralysis of the minor extremity and a 70 percent rating is assigned for the major extremity. An 80 percent rating is assigned for complete paralysis of all radicular groups; the upper (shoulder and elbow), middle (elbow and wrist) and lower (hand, wrist, fingers) of the minor extremity, and a 90 percent rating is assigned for the major extremity. 38 C.F.R. § 4.124a, DC 8513. Under DC 8520 pertaining to the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent rating is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). B. Analysis 2. A rating higher than 20 percent for diabetes. The Veteran seeks a rating higher than 20 percent for diabetes. Thus, the question is whether the Veteran’s diabetes required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). Further, because DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. An October 2018 Physician’s Statement reflects that the Veteran’s diabetes requires insulin and restricted diet, or, oral hypoglycemic agent and restricted diet. See November 2018 VA 21-526EZ. No requirement for regulation of activities was indicated. Moreover, the December 2018 VA examiner specifically reported that the Veteran does not require regulation of activities as part of medical management for diabetes, noting it had no impact on the Veteran’s ability to work. As such, the criteria for the next higher rating are not met. The Board notes that VA treatment records in November 2019 reflect no restriction on activities in February 2019. Moreover, the Veteran was instructed to try to exercise for at least 30 minutes three times per week, and it was noted that he was not on insulin and had no complications from diabetes. The Veteran is competent to report symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds the medical evidence is against a finding that regulation of activities is required during the rating period on appeal. The Veteran’s diabetic peripheral neuropathy of the upper and lower extremities, as well as erectile dysfunction, are separately rated and higher ratings for such are addressed below. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a rating higher than 20 percent for diabetes is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. A rating higher than 20 percent for right upper extremity diabetic peripheral neuropathy. 4. A rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy. The Veteran seeks higher ratings for peripheral neuropathy of the right and left upper extremities. The December 2018 VA examination report notes the Veteran is right hand dominant. Mild incomplete paralysis of the median and ulnar nerves was reported, and the radial nerves were noted to be normal. No pain in the upper extremities was reported, and paresthesias and/or dysesthesias, as well as numbness, were noted to be mild. Right and left upper extremity strength was 5/5 and no muscle atrophy was reported. Further, although light touch/monofilament testing was decreased in the right and left hand/fingers, normal position, vibration, and cold sensation was reported. The Board notes that VA treatment records in November 2019 report that upper strength was excellent in the upper extremities. In addition, an essential hand tremor was reported to have a functional component, noting symptoms reduced with distraction. The Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board considered the lay statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings, which do not show more than mild incomplete paralysis of the right or left upper extremity. As such, ratings higher than the 20 percent currently assigned for the right and left upper extremities are not warranted. The evidence is consistent with mild incomplete paralysis of the median and ulnar nerves (i.e., all radicular groups) in both upper extremities. Therefore, a higher rating for diabetic peripheral neuropathy of either the right or left upper extremity is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for ratings higher than 20 percent for diabetic peripheral neuropathy of the right and left upper extremity. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. A rating higher than 40 percent for right lower extremity diabetic peripheral neuropathy. 6. A rating higher than 40 percent for left lower extremity diabetic peripheral neuropathy. The Veteran seeks higher ratings for peripheral neuropathy of the right and left lower extremities. The 40 percent ratings currently assigned were evaluated under DC 8520. The December 2018 VA peripheral neuropathy examination report reflects moderate incomplete paralysis of the sciatic nerve of both the right and left lower extremities. The examiner reported moderate pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. Strength and reflexes in the lower extremities were normal. Light touch/monofilament testing was decreased in the ankles and toes, and normal in the knee/thigh. In addition, and although decreased vibration sensation in the lower extremities was noted, normal cold and position sense was reported. Further, and although trophic changes from the toes to the knees were noted, no muscle atrophy was reported. The femoral nerves were normal. The functional impact was noted to preclude prolonged standing and walking. In addition, constant use of a wheeled seated walker for support in ambulation was noted to be due to both neuropathy of the lower extremities and nonservice-connected degenerative joint disease (DJD) of the bilateral knees. The Board notes that 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). Further, VA treatment records in November 2019 note neuropathy of the lower extremities was tolerable, and sensory examination was normal. The Veteran’s slow gait was noted to be likely secondary to his nonservice-connected knee pain. The Veteran is competent to report his symptoms. See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465. The Board considered the lay statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings. The Board notes that although the VA examiner reported that the lower extremity neuropathy was moderate, the 40 percent ratings assigned for the right and left lower extremity contemplate moderately severe incomplete paralysis. As such, ratings higher than 40 percent for the right or left lower extremity are clearly not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for ratings higher than 40 percent for diabetic peripheral neuropathy of the right and left lower extremity. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. A compensable rating for erectile dysfunction. The Veteran’s erectile dysfunction rating has been assigned pursuant to DC 7522. Erectile dysfunction is rated by analogy. As noted above, under DC 7522, deformity of the penis with loss of erectile power is rated as 20 percent disabling. This is a conjunctive set of criteria; both must be present to warrant compensation at the sole authorized level of 20 percent. In other words, there is no schedular rating for loss of erectile power alone. Loss of erectile power, without penis deformity, does not warrant a compensable rating (aside from the special monthly compensation, which has already been awarded in this case). 38 C.F.R. § 4.115(b), DC 7522. The December 2018 VA examination report reflects that, at the Veteran’s request, his penis was not examined, and that the Veteran reported normal anatomy with no penile deformity or abnormality. As such, the evidence does not support a compensable rating for the Veteran’s erectile dysfunction under DC 7522. Thus, and although medical records reflect erectile dysfunction, there is no evidence of penile deformity. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a compensable rating for erectile dysfunction is therefore, not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective Date A. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). B. Analysis 8. An earlier effective date for diabetes. In the September 2019 notice of disagreement (NOD), the Veteran checked the box for disagreement with the area of the rating and effective date for diabetes. No specific assertions about the effective date were made. Service connection for diabetes was granted in a May 2009 rating decision, and a 20 percent rating was assigned. The Veteran did not appeal that decision and no new and material evidence was received within a year of the decision. As such, the May 2009 decision became final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, as no increase was granted with an effective date, an earlier effective date is not available. The Board cannot adjudicate the earlier effective date claim as it represents a freestanding claim for an earlier effective date, which is not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). This claim for an earlier effective date is therefore dismissed for lack of jurisdiction. 38 U.S.C. § 7105(d)(5). Should any higher ratings be granted in the future for this condition, any assigned effective date can thereafter be appealed. 9. An effective date for a 20 percent rating for diabetic peripheral neuropathy of the right upper extremity prior to November 2, 2018. 10. An effective date for a 20 percent rating for diabetic peripheral neuropathy of the left upper extremity prior to November 2, 2018. The January 2019 rating decision on appeal granted separate 20 percent ratings for diabetic peripheral neuropathy of the right and left upper extremities. The award of service connection (separate compensable rating) for peripheral neuropathy of the upper extremities was precipitated by receipt of the Veteran’s November 2, 2018 claim for an increased rating for diabetes mellitus. Although the Veteran’s NOD notes a diagnosis of peripheral neuropathy of the upper extremities three years earlier, seeking treatment alone is not sufficient to establish a claim. As noted above, the Veteran did not appeal the May 2009 rating decision with respect to diabetes and no new and material evidence was received within a year of the decision. As such, the May 2009 decision became final. See 38 C.F.R. §§ 20.302, 20.1103. The Board notes that although the Veteran filed claims for other disabilities subsequent to the May 2009 rating decision, a higher rating claim for diabetes was not filed prior to November 2, 2018. The Veteran’s February 2013 application for a TDIU listed PTSD, hearing loss, and tuberculosis as the disabilities preventing him from maintaining employment. See April 2013 VA Form 21-8940. In a February 2015 submission, the Veteran noted being unable to find work due to a hip disorder, high blood pressure, and arthritis in his knees. See March 2015 21 4138 Statement in Support of Claim. Further, and although VA treatment records in August 2018 note neuropathy in May 2017, diabetic peripheral neuropathy of the right or left upper extremities to a compensable degree is not shown within one year prior to the November 2018 claim. Possible hand tremors in October 2018 were noted in association with a history of alcohol abuse. See October 2019 VA treatment records. Diabetic peripheral neuropathy of the right or left upper extremities to a compensable degree is not shown within one year prior to November 2018 claim, and thus a separate compensable rating for diabetic peripheral neuropathy of the right or left upper extremity prior to November 2, 2018 is not warranted. As it is not ascertainable that the Veteran had diabetic peripheral neuropathy of the upper extremities within one year prior to November 2, 2018 claim, an effective date prior to that date is not warranted. 38 C.F.R. § 3.400. 11. An effective date for a 40 percent rating for diabetic peripheral neuropathy of the right lower extremity prior to November 2, 2018. 12. An effective date for a 40 percent rating for diabetic peripheral neuropathy of the left lower extremity prior to November 2, 2018. The January 2019 rating decision on appeal granted separate 20 percent ratings for diabetic peripheral neuropathy of the right and left lower extremities, increased to 40 percent for the entire rating period on appeal. See March 2020 rating decision. As above, the award of service connection (separate compensable rating) for peripheral neuropathy of the lower extremities was precipitated by receipt of the Veteran’s November 2, 2018 claim for an increased rating for diabetes mellitus. As noted above, the Veteran did not appeal the May 2009 rating decision with respect to diabetes and no new and material evidence was received within a year of the decision. As such, the May 2009 decision became final. See 38 C.F.R. §§ 20.302, 20.1103. The Board notes that although the Veteran filed claims for other disabilities subsequent to the May 2009 rating decision, a higher rating claim for diabetes was not filed prior to November 2, 2018. The Veteran’s February 2013 application for a TDIU listed PTSD, hearing loss, and tuberculosis as the disabilities preventing him from maintaining employment. See April 2013 VA Form 21-8940. In a February 2015 submission, the Veteran noted being unable to find work due to a hip disorder, high blood pressure, and arthritis in his knees. See March 2015 21 4138 Statement in Support of Claim. In addition, and although VA treatment records in November 2016 reference possible peripheral neuropathy, the assessment was autonomic orthostasis. The Board notes that seeking treatment alone is not sufficient to establish a claim. Further, VA treatment records in August 2018 note no neurologic disease, and no extremity or muscle weakness was reported in April 2017. Although VA treatment records in August 2018 reference neuropathy of the legs, neurological assessment was reported to be negative. Normal peripheral pulses in the lower extremities were reported and no sensory deficits were noted. Diabetic peripheral neuropathy of the right or left lower extremity to a compensable degree is not shown within one year prior to the November 2018 claim. As it is not ascertainable that the Veteran had diabetic peripheral neuropathy of the lower extremities to a compensable degree within one year prior to November 2, 2018 claim, an effective date prior to that date is not warranted. 38 C.F.R. § 3.400. 13. A noncompensable rating for erectile dysfunction prior to November 2, 2018. The January 2019 rating decision on appeal granted a separate noncompensable rating for erectile dysfunction secondary to diabetes mellitus. The award was precipitated by receipt of the Veteran’s November 2, 2018 increased rating claim for diabetes. As noted above, the Veteran did not appeal the May 2009 rating decision with respect to diabetes and no new and material evidence was received within a year of the decision. As such, the May 2009 decision became final. See 38 C.F.R. §§ 20.302, 20.1103. The Board notes that although the Veteran filed claims for other disabilities subsequent to the May 2009 rating decision, a higher rating claim for diabetes was not filed prior to November 2, 2018. The Veteran’s February 2013 application for a TDIU listed PTSD, hearing loss, and tuberculosis as the disabilities preventing him from maintaining employment. See April 2013 VA Form 21-8940. In a February 2015 submission, the Veteran noted being unable to find work due to a hip disorder, high blood pressure, and arthritis in his knees. See March 2015 21 4138 Statement in Support of Claim. Although August 2018 VA treatment records reflect impotence of organic origin on a February 2017 Computerized Problem List, seeking treatment alone is not sufficient to establish a claim. Erectile dysfunction due to service-connected diabetes is not shown within one year prior to the November 2018 increased rating claim. Therefore, a separate rating for erectile dysfunction prior to November 2, 2018, is not warranted. 38 C.F.R. § 3.400 14. SMC based on loss of use of a creative organ prior to November 2, 2018. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (t) and 38 C.F.R. § 3.350 and § 3.352. SMC is payable at a specified rate if the Veteran, as the 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); 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, DC 7522. VA policy is to pay special monthly compensation for loss of use of a creative organ whenever a service-connected disease causes loss of erectile power. It must initially be established, however, that the loss of erectile dysfunction is a manifestation of a service-connected disease or injury. In this case, the appeal arises from the grant of SMC based on loss of use of a creative organ as secondary to service-connected diabetes with erectile dysfunction, effective November 2, 2018, the date of the claim for increase. In light of the fact that there is no legal basis for the assignment of an earlier effective date for the grant of service connection for diabetes mellitus and/or erectile dysfunction, it follows that there is no legal basis for the assignment of an effective date for the grant of SMC based on loss of use of a creative organ prior to November 2, 2018. An increase in diabetes was not factually ascertainable prior to the claim, and thus, an effective date for SMC based on loss of use of a creative organ prior to November 2, 2018, is not warranted. 38 C.F.R. § 3.400. REASONS FOR REMAND 1. A rating higher than 60 percent for bilateral hearing loss. As reflected in the decision above, the Board restored the 60 percent rating for bilateral hearing loss. As such, the remaining hearing loss issue is whether a rating higher than 60 percent is warranted. In that respect, procedurally, the Board notes that the February 2015 rating decision reflects that the RO construed the Veteran’s February 2013 submission as an increased rating claim for bilateral hearing loss. See April 2013 VA Form 21-8940. In March 2015, the Veteran stated that his hearing was not improving. See March 2015 VA Form 21-4138 Statement in Support of Claim. Although a rating decision promulgated in May 2016 reflects that the rating for hearing loss was reduced to noncompensable, the reduction was not appropriate because the Veteran was not properly notified of the proposed reduction in the May 2015 rating decision. See August 2016 deferred rating decision. Further, and although May 2018 and September 2018 rating decisions adjudicated the issue of entitlement to a compensable rating for bilateral hearing loss, as reflected in the January 2019 rating decision, a reduction was never finalized. Thus, the Veteran’s February 2013 higher rating claim for bilateral hearing loss remains pending. Additionally, the April 2016 VA hearing loss examination report reflects speech discrimination in the right ear was 96 percent, while VA treatment records in January 2019 reflect speech discrimination in the right ear was 84 percent, noting significant changes in threshold in the relevant frequencies in both ears since audiological evaluation in July 2017. As such, VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In addition, VA treatment records in July 2017 indicate that audiograms were viewable under Audiogram Display in the Tools menu in the Computerized Patient Record System (CPRS); however, the Board does not have access to the CPRS system. See August 2018 VA treatment records. As such, remand is also required to associate all audiograms in the Veteran’s CPRS records during the rating period on appeal. In view of the remand, VA treatment records since issuance of the March 2020 statement of the case (SOC) should be obtained. 2. A TDIU. 3. SMC at a higher rate. 4. Eligibility to DEA prior to November 2, 2018. Because a decision on the remanded issue of a higher rating for bilateral hearing loss could significantly impact a decision on the issues of a TDIU, SMC at a higher rate, and eligibility to DEA prior to November 2, 2018, the issues are inextricably intertwined. Thus, a remand of these claims is required. The matters are REMANDED for the following action: 1. Obtain VA treatment records, including all audiograms associated with the Veteran’s CPRS records, during the rating period on appeal, as well as since the issuance of the March 2020 SOC. All records should be scanned into the electronic record. 2. Schedule the Veteran for an audiological examination (or telehealth interview, records request, etc. if an in person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected bilateral hearing loss from February 2013 to the present. The opinion should include a description of the functional effects caused by the service-connected bilateral hearing loss. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinion without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.