Citation Nr: 21006969 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 20-00 401 DATE: February 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a compensable disability rating for erectile dysfunction associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to a separate compensable disability rating for right eye mild non proliferative diabetic retinopathy associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy is denied. Entitlement to additional special monthly compensation for loss of use of a creative organ is denied. The application to reopen the previously denied claim for service connection for coronary artery disease (CAD) (claimed as heart condition) is dismissed. The application to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for chronic sleep disorder, claimed as sleep issues is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder, is remanded. Entitlement to service connection for residuals of stroke, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for respiratory issues, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disability to include PTSD and major depressive disorder, is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required only restricted diet, one or more daily injection of insulin, and a prescribed oral glycemic agent during the period on appeal. 2. The Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities is manifest by no more than mild incomplete paralysis for all extremities. 3. For the entire period on appeal, the Veteran’s service-connected erectile dysfunction manifested by loss of erectile power, but not penile deformity. 4. The Veteran’s decrease in visual acuity of his right eye is not due to right eye mild non proliferative diabetic retinopathy. 5. The Veteran is currently receiving special monthly compensation for loss of use of a creative organ. 6. On October 2, 2019, prior to the promulgation of a decision in the appeal, the RO granted the Veteran’s claim for entitlement to service connection for coronary artery disease (claimed as heart condition), therefore the issue on appeal of whether there is new and material evidence to reopen the Veteran’s claim for heart condition is dismissed because it is now moot. 7. In a September 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for PTSD. The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period. 8. Evidence received since the September 2013 rating decision that denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, is new and relates to an unestablished fact necessary to substantiate the claim. 9. The preponderance of the evidence of record is against finding that the Veteran has had a chronic sleep disability at any time during or approximate to the pendency of the claim. 10. The preponderance of the evidence is against finding that a chronic sleep disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8514. 3. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8514. 4. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.31, 4.115b, Diagnostic Code 7599-7522. 7. The criteria for a compensable for right eye mild non proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.76A, 4.79, Diagnostic Code 6006, Diagnostic Code 6066. 8. The criteria for entitlement to additional special monthly compensation for loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. 9. The claim to reopen the previously denied claim for service connection for CAD (claimed as heart condition) is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 10. The criteria to reopen the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, has been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 11. The criteria for service connection for a chronic sleep disability, claimed as sleep issues, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 until his honorable discharge in August 1970. The Board notes that the Veteran served in Vietnam from 20 April 1969 until June 9, 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). As will be addressed in greater detail below, the Board has recharacterized the Veteran’s service-connected type II diabetes mellitus to type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy because the Veteran’s erectile dysfunction and right eye mild non proliferative diabetic retinopathy disabilities are noncompensable. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy The Veteran asserts that he is entitled to a higher disability rating for his type II diabetes mellitus. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). 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, Diagnostic Code 7913 (Note 1). As will be addressed in greater detail below, the Veteran’s right eye mild non proliferative diabetic retinopathy is serious enough to result in a separate disability evaluation. Therefore, in accordance with 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1), the Veteran’s right eye disability is part and parcel to the Veteran’s service-connected type II diabetes mellitus and shall be considered part of the diabetic process. Because Diagnostic Code 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. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus 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). The Veteran was afforded a VA examination in July 2016 and April 2017. The July 2016 VA examiner found that the Veteran’s diabetes required only prescribed oral glycemic agent during the period on appeal. The April 2017 VA examiner found that the Veteran’s type II diabetes had become more severe requiring only restricted diet, one or more daily injection of insulin, and a prescribed oral glycemic agent during the period on appeal. The Board finds that the Veteran’s type II diabetes mellitus required only restricted diet, one or more daily injection of insulin, and a prescribed oral glycemic agent during the period on appeal. However, despite the Veteran’s type II diabetes mellitus disability worsening, the record does not reflect that it has progressed to a level that merits a disability rating in excess of 20 percent. The Board notes that the record does not reflect, nor does the Veteran assert that the Veteran’s type II diabetes mellitus requires avoidance of strenuous occupational and recreational activities, nor does he have episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider The record reflects that the Veteran has multiple complications to his type II diabetes mellitus. Specifically, the Veteran has compensable complications of bilateral peripheral neuropathy of both his upper and lower extremities. Furthermore, the Veteran has noncompensable complications of erectile dysfunction and right eye mild non proliferative diabetic retinopathy. The Veteran is service-connected for all of the above disabilities. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. 2. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy 3. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy 4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy 5. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus with erectile dysfunction and right eye mild non proliferative diabetic retinopathy Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to a higher disability rating for his peripheral neuropathy disabilities. Paralysis of the bilateral radial nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8514. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; can not extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of the wrist; supination of the hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only at the greatest rarity is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes 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). The Veteran was afforded a VA examinations in July 2016 and April 2017. Regarding impairment of motor functions, the Veteran had normal muscle strength, except the July 2016 VA examiner found that the Veteran had less strength than normal in his right knee flexion. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran had decreased light touch in his inner and outer forearm, hand/fingers, and feet/toes. Regarding loss of reflexes, the Veteran has normal reflexes, except for his bilateral ankles, which were absent. Regarding pain, the Veteran reported mild intermittent pain, bilateral paresthesias and/or dysesthesias, and numbness of his bilateral upper and bilateral lower extremities. Regarding muscle atrophy, the Veteran does not have muscle atrophy. Regarding complete paralysis, the Veteran has mild incomplete paralysis of the bilateral radial and sciatic nerves and does not have complete paralysis of any nerves. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, and complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for peripheral neuropathy of the Veteran’s bilateral upper extremities and for a rating in excess of 10 percent for peripheral neuropathy of the bilateral lower extremities. In denying such a rating, 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. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. 6. Entitlement to a compensable disability rating for erectile dysfunction The Veteran’s erectile dysfunction is rated under Diagnostic Code 7522 for a penile deformity with loss of erectile power. Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. 38 C.F.R. § 4.115b. There is no other alternative criterion warranting assignment of a compensable disability rating and a 20 percent rating is the only schedular rating provided. As a preliminary mater, and noted above, 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, Diagnostic Code 7913 (Note 1). During an April 2017 VA examination, the Veteran stated that he had loss of sexual function. However, he requested that his penis not be physically examined and instead acknowledged no penile deformities or abnormalities (meaning other than loss of erectile power). In Williams v. Wilkie, 30 Vet. App. 134, 138 (2018), the United States Court of Appeals for Veterans Claims (Court) noted that, “[a]lthough DC 7522 requires a “deformity” for a compensable rating, VA has not expressly defined this term.” The Court defined deformity as a “distortion of any part or general disfigurement of the body,” to include internal and external deformities. Id (citing Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012). In this case, the evidence does not reflect that there were internal or external deformities of this contemplated type. As noted, the Veteran has denied having any penile deformities or abnormalities. Moreover, to the extent he has loss of erectile power, the Veteran is already being compensated for this complication. Specifically, he has been determined to be entitled to special monthly compensation (SMC), i.e., a “higher rate” of compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) because of resultant loss of use of a creative organ. Based on the foregoing, the Board finds that an initial compensable rating for erectile dysfunction is not warranted throughout the period on appeal. Moreover, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, as noted above, noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Therefore, the Board finds that a separate disability is not warranted and the issue of service connection for erectile dysfunction shall be merged with his service-connected type II diabetes mellitus and shall no longer be listed as a separate disability until it becomes a compensable disability. The Board notes that the merger of this disability with the Veteran’s type II diabetes mellitus into a single disability will only correct a prior error and will not negatively impact the Veteran in any way. 7. Entitlement to a compensable disability rating for right eye mild non proliferative diabetic retinopathy associated with type II diabetes mellitus The Veteran asserts that he is entitled to a higher disability rating. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. The Veteran is rated under Diagnostic Code 6006-6066. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. During the pendency of the Veteran’s appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. The Board also notes that in the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided “For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.” However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides “For the purposes of evaluation under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note: (2) provides “examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions.” Note: (3) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. The criteria under Diagnostic Codes 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Id. Diagnostic Code 6066 provides disability ratings where vision in one eye (the poorer eye) is 10/200 or better. Where visual acuity in one eye (the poorer eye) is 10/200, a 30 percent disability rating is warranted where vision in the other eye is 20/40. A 40 percent disability rating is warranted where vision in the other eye is 20/50. A 50 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. An 80 percent disability rating is warranted where vision in the other eye is 15/200. A 90 percent disability rating is warranted where vision in the other eye is 10/200. Id. Where visual acuity in one eye (the poorer eye) is 15/200, a 20 percent disability rating is warranted where vision in the other eye is 20/40. A 30 percent disability rating is warranted where vision in the other eye is 20/50. A 40 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. An 80 percent disability rating is warranted where vision in the other eye is 15/200. Id. Where visual acuity in one eye (the poorer eye) is 20/200, a 20 percent disability rating is warranted where vision in the other eye is 20/40. A 30 percent disability rating is warranted where vision in the other eye is 20/50. A 40 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. Id. Where visual acuity in one eye (the poorer eye) is 20/100, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 20 percent disability rating is warranted where vision in the other eye is 20/50. A 30 percent disability rating is warranted where vision in the other eye is 20/70. A 50 percent disability rating is warranted where vision in the other eye is 20/100. Id. Where visual acuity in one eye (the poorer eye) is 20/70, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 20 percent disability rating is warranted where vision in the other eye is 20/50. A 30 percent disability rating is warranted where vision in the other eye is 20/70. Id. Where visual acuity in one eye (the poorer eye) is 20/50, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 10 percent disability rating is warranted where vision in the other eye is 20/50. Where visual acuity in one eye (the poorer eye) is 20/40, a noncompensable disability rating is warranted where vision in the other eye is 20/40 or better. Id. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran’s pupils dilated. Id. Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen’s test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. A June 2016 VA examination reveals that the Veteran had blurred vision in both eyes and is scheduled for cataract surgery 1-week following the VA examination. 06.22.2016 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 10/200 20/50 10/200 20/40 or better LEFT 10/200 20/50 10/200 20/40 or better Although the Veteran is service-connected for mild non proliferative diabetic retinopathy of the right eye, the June 2016 VA examiner found that the Veteran does not have diabetic retinopathy in either eye and noted that the Veteran is diagnosed with bilateral cataracts and is scheduled for cataract surgery at the end of June 2016. Based on the evidence above, a compensable disability rating for the Veteran’s loss of visual acuity is not warranted. The Veteran’s visual acuity of 20/50 corrected distance bilaterally would warrant a 10 percent disability rating if the decrease in visual acuity was due to a service-connected disability. However, as the Veteran’s decrease in visual acuity is not due to diabetic retinopathy. The Board notes that the record does not indicate, nor does the Veteran assert that he has had incapacitating episodes under the current or prior rating criteria during the period on appeal. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable disability rating for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, as noted above, noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Therefore, the Board finds that a separate disability is not warranted and the issue of service connection for right eye mild non proliferative diabetic retinopathy shall be merged with his service-connected type II diabetes mellitus and shall no longer be listed as a separate disability unless it worsens to such an extent as to become a compensable disability. The Board notes that the merger of this disability with the Veteran’s type II diabetes mellitus into a single disability will only correct a prior error and will not negatively impact the Veteran in any way. 8. Entitlement to additional special monthly compensation for loss of use of a creative organ. The Veteran asserts that he is entitled to additional special monthly compensation for loss of use of a creative organ. Special monthly compensation is payable under several circumstances, including if, as the result of the Veteran’s service-connected disability or disabilities, the Veteran has loss of use of a creative organ. 38 C.F.R. § 3.350(a)(1). The Board notes that the Veteran is already receiving special monthly compensation for loss of use of a creative organ since July 29, 2015, the date he was awarded service connection for erectile dysfunction. He has not described any additional New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 9. New and material evidence to reopen the claim of service connection for heart condition (also claimed as CAD) The Board notes that during the period on appeal, the RO granted the Veteran’s claim for service connection for CAD (claimed as heart condition). Therefore, this issue is moot and the Board shall dismiss the issue. 10. New and material evidence to reopen the claim of service connection for PTSD The Veteran applied for service connection for PTSD in May 2012. This claim was denied in the September 2013 rating decision because the disability has not been clinically diagnosed and the diagnosed major depressive disorder was not shown in service, was not due to the claimed trauma or military service but is most likely related to medical issues, unemployment, marital separation, and financial strain given the timing of the onset of symptoms and primary concerns at the time. The Veteran did not appeal this claim, and it became final in September 2014. The Veteran applied for service connection for mental health condition due to stress from combat in April 2017. This claim was denied in the May 2017 rating decision because the Veteran had not submitted new and material evidence. Evidence submitted since the September 2013 final decision includes April 2017 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); Cincinnati VAMC treatment records from June 30, 2016 through September 14, 2020; Military Personnel Record (previously of record); Service Treatment Records (previously of record); August 2017 Notice of Disagreement (NOD); November 2019 Appeal to Board of Veterans’ Appeals (VA Form 9); November 2019 Mental Disorders (other than PTSD and eating disorders) Disability Benefits Questionnaire (DBQ) completed by a private provider and received in July 2020; October 2016 article on depression; and correspondence from the Veteran’s spouse. The Board finds that the Veteran submitted new and material evidence for the Veteran’s acquired psychiatric disability. Specifically, the November 2019 Mental Disorders DBQ included a medical opinion linking the Veteran’s current major depressive disorder with his active military service. As this new evidence directly addresses an element of service connection previously missing, it is material and requires the Board to reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 11. Entitlement to service connection for chronic sleep disorder, claimed as sleep issues The Veteran asserts that he has sleep issues. First, the Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The record does not reflect a diagnosis of a chronic sleep disability. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no assertion of functional limitation due to a chronic sleep disability. Second, even if the Board found that there was a current disability, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran does not assert, nor does the record reflect an in-service onset of a chronic sleep disability. The Veteran’s STRs, entrance examination, and separation examination reflect normal clinical evaluation with no complaints of chronic sleep disabilities. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of chronic sleep disability. The second element of service connection has not been met, and an award of service connection is not warranted. See Holton, supra. Accordingly, service connection is denied. To the extent that the Veteran’s difficulties with sleep are associated with an acquired psychiatric disability, that discussion is set forth below. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in September 2013. The September 2013 VA examiner opined that the Veteran’s major depressive disorder is less likely as not related to his claimed trauma or military service, as it is most likely related to medical issues, unemployment, marital separation, and financial strain given the timing of the onset of the symptoms and his primary concerns at this time. However, the September 18, 2013 VA examiner failed to address what specific medical issues attributed to the Veteran’s acquired psychiatric disability. The Board notes that at the time of the September 2013 VA examination, the Veteran was not service-connected for any disabilities but was subsequently granted service connection for type II diabetes mellitus on September 26, 2013, effective May 25, 2012. The Board notes that in a November 2019 DBQ from a private provider, the private provider opined that his wife asserted that the Veteran returned home from service a different person, including mood swings, bothered by large crowds, socially isolated, anxious, paranoid, easily upset/overwhelmed, unable to drive due to diabetes and neuropathy which affected his work (could no longer drive the bus), frustrated because he could no longer provide for his family, chronic pain, weakness, poor mobility, physical limitations, depression, lacks motivation, and short tempered. Based upon this, the private provider opined that the Veteran’s major depressive disorder began in military service and continues uninterrupted to the present. However, the Board notes that this is contrary to the information the Veteran provided during his September 2013 VA examination. For example, the Veteran asserted that he has always been a loner, even in school and is quite introverted; the first onset of symptoms was in the 2000s; he had 6-8 sessions in the early 2000s due to depression on the job. Finally, the private provider asserts that the Veteran became unemployable due to his type II diabetes mellitus and peripheral neuropathy without addressing the fact that the Veteran stopped working after his stroke and that the Veteran asserted that he was “pushed out because he was unreliable [after his stroke].” Because the opinion relies on facts that are contrary to the evidence of record, the opinion lacks probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Finally, the private opinion noted but did not comment on the September 2013 VA examination that noted that the onset of symptoms was in line with his current life events of unemployment, marital separation, and financial strain subsequent to his non-service-connected stroke(s). For the above reasons, remand is required. 2. Entitlement to service connection for residuals of stroke, to include as due to herbicide agent exposure, is remanded. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran’s disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran has a history of strokes; the Veteran had herbicide agent exposure during his service; the Veteran’s strokes may be related to his in-service herbicide agent exposure. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 3. Entitlement to service connection for respiratory issues, to include as due to herbicide agent exposure, is remanded. Here, the Veteran has a history of respiratory issues (including asthma); he was exposed to herbicide agents during his service; his respiratory issues may be related to his in-service herbicide agent exposure. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 4. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disability, to include PTSD and major depressive disorder, is remanded. 5. Entitlement to TDIU is remanded. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. In light of the Veteran’s assertions, the issue of TDIU is raised by the record and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). Finally, because a decision on the remanded issues could significantly impact a decision on the issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder and entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder and entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination for his residuals of stroke(s). The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s residuals of strokes at least as likely as not related to his active military service, to include in-service herbicide agent exposure? Why do you say so? The examiner is advised that a negative opinion cannot be based solely on the fact that the strokes is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 2. Schedule the Veteran for a VA examination for his respiratory condition(s). The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is respiratory disability at least as likely as not related to service, including herbicide agent exposure. Provide a rationale to support the opinion(s). The examiner is advised that a negative opinion cannot be based solely on the fact that the respiratory disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 3. Schedule the Veteran for a VA examination for his acquired psychiatric disability, to include PTSD and major depressive disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is acquired psychiatric disability, to include PTSD and major depressive disorder at least as likely as not related to service, including that it began during military service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s descriptions, the Medical Journals cited by the Veteran’s private provider, onset and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported onset and/or symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical/psychiatric knowledge or medically/psychiatrically implausible? Is any acquired psychiatric disability, to include PTSD and major depressive disorder at least as likely as not proximately due to his service-connected disabilities? Is acquired psychiatric disability, to include PTSD and major depressive disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected disabilities? (Continued on the next page)   4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disability, to include PTSD and major depressive disorder and the issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.