Citation Nr: 21007459 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-54 314 DATE: February 9, 2021 ORDER New and material evidence having been submitted, the claim for service connection for hypertension is reopened. The appeal for the issue of entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus is dismissed. Entitlement to an effective date of April 21, 2011, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy is granted. Entitlement to an effective date of April 21, 2011, but not earlier, for the award of service connection for left lower extremity peripheral neuropathy is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected type II diabetes mellitus, posttraumatic stress disorder (PTSD), and coronary artery disease status post coronary artery bypass grafting (CABG), is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to an evaluation in excess of 20 percent for right upper extremity polyneuropathy is remanded. Entitlement to an evaluation in excess of 20 percent for left upper extremity polyneuropathy is remanded. Entitlement to an effective date prior to October 19, 2018, for the assignment of a 20 percent evaluation for right upper extremity polyneuropathy is remanded. Entitlement to an effective date prior to October 19, 2018, for the assignment of a 20 percent evaluation for left upper extremity polyneuropathy is remanded. FINDINGS OF FACT 1. In an August 2007 rating decision, the Regional Office (RO) denied a claim for service connection for hypertension. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the August 2007 rating decision relates to an unestablished fact and raises the reasonable possibility of substantiating the claim for service connection for hypertension. 3. On January 29, 2020, prior to the promulgation of a decision in the appeal, the Veteran’s representative indicated in writing that he wanted to withdraw his appeal with respect to the issue of entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus. 4. The Veteran filed claims for service connection for right and left lower extremity polyneuropathy on April 21, 2011. No earlier record constitutes a formal or informal claim for neuropathy of the lower extremities. It was not factually ascertainable that the Veteran had lower extremity neuropathy as a complication of type II diabetes mellitus prior to April 21, 2011. 5. The Veteran’s April 21, 2011, claims for service connection for right and left lower extremity polyneuropathy remained pending until service connection was granted for right and left lower extremity peripheral neuropathy in a December 2018 rating decision. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied the Veteran’s claim for service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2007). 2. The evidence received since the August 2007 rating decision is new and material, and the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2019). 3. The criteria for withdrawal of an appeal by the Veteran and his representative have been met for the issue of entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for an effective date of April 21, 2011, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. § 5110, 5107; 38 C.F.R. §§ 3.102, 3.151, 3.400, 3.816, 19.21. 5. The criteria for an effective date of April 21, 2011, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. § 5110, 5107; 38 C.F.R. §§ 3.102, 3.151, 3.156(b) 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to June 1969. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and December 2018 rating decisions. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2019. A transcript is of record. The Board notes that additional VA medical records have been associated with the claims file since the June 2019 statement of the case. However, a review of that evidence reveals that it is cumulative with respect to the Veteran’s hypertension claim. Moreover, the evidence is not relevant to the disposition of the effective date claims decided herein. In January 2020, the Veteran also submitted additional evidence with a waiver of initial consideration by the agency of original jurisdiction (AOJ). Therefore, a waiver from the Veteran or a remand to the AOJ for issuance of a supplemental statement of the case is not required. See 38 C.F.R. §§ 19.31, 19.37, 20.1305. New and Material In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by Regional Office (RO), the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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. Id. at 118. In an August 2007 rating decision, the RO reopened and denied a claim for service connection for hypertension finding that the disorder was not caused or aggravated by the Veteran’s service-connected type II diabetes mellitus. The Veteran was notified of the decision and of his appellate rights; however, he did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the decision. Therefore, the August 2007 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2007). The Veteran sought to reopen his claim for service connection for hypertension in October 2018. In a December 2018 rating decision, the RO determined that new and material evidence had not been received to reopen the claim for service connection for hypertension. The evidence received since the August 2007 rating decision includes VA medical records, private medical records, lay statements, and medical articles. Notably, in January 2020, the Veteran’s representative submitted a journal article that noted approximately 60 percent of people with diabetes mellitus also have high blood pressure. An August 2017 private medical record also noted a diagnosis of hypertension associated with diabetes. This evidence relates to a previously unestablished fact and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Thus, the Board finds that the evidence is both new and material, and the claim for service connection for hypertension is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim can be addressed. Withdrawn Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or his authorized representative. Id. In January 2020, the Veteran’s representative submitted a letter indicating that the Veteran wanted to withdraw his appeal for the issue of entitlement to an increased evaluation for the service-connected type II diabetes mellitus. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. Earlier Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (“increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). With respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide exposure, VA has issued special regulations. See 38 C.F.R. § 3.816; see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov’t of the U.S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d 846 (2007) (Nehmer IV). In other words, the Nehmer litigation has created an exception to the generally applicable effective date rules for liberalizing laws or a liberalizing VA issue contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. A “Nehmer class member” is defined as a Vietnam veteran who has a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i) and (ii). The term “covered herbicide disease” includes early-onset peripheral neuropathy and type II diabetes mellitus. 38 C.F.R. §§ 3.309(e) and 3.816(b)(2). The Nehmer regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a Nehmer class member has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or, (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (2). A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. 38 C.F.R. § 3.816(c)(1). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant’s application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(i), (ii). If the class member’s claim was received within one year of his or her separation from service, the effective date of the award shall be the day following the date of the class member’s separation from active service. If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(3), (4). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the award shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. This exception applies to original and reopened claims, as well as claims for increase. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) (confirming that the plain language of section 5110(g) “prohibits a retroactive award prior to the effective date of the legislation”), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that effective dates of April 21, 2011, but not earlier, for the awards of service connection for right and left lower extremity peripheral neuropathy are warranted. Historically, the Veteran filed claims for service connection for polyneuropathy of all four extremities on April 21, 2011. In a July 2011 rating decision, the RO denied service connection for polyneuropathy of the right and left lower extremities, finding that there was no evidence that polyneuropathy was related to the service-connected type II diabetes mellitus. In September 2011, the Veteran submitted a notice of disagreement (NOD) with the denial of service connection for polyneuropathy of the right and left upper extremities. In so doing, he did not reference his lower extremities or otherwise indicate an intent to disagree with the denial of service connection for polyneuropathy of the lower extremities. In December 2011 and January 2012, the Veteran inquired about the status of his NOD, but he did not express any disagreement with the decision regarding his lower extremity polyneuropathy. Nevertheless, in April 2012, the Veteran submitted an additional NOD. In so doing, the Veteran specifically stated that his private physician diagnosed him with diabetic polyneuropathy in the right extremities due to his service-connected type II diabetes mellitus. The Board finds that the Veteran’s April 2012 NOD is reasonably construed as a notice of disagreement with the July 2011 rating decision that denied service connection for right lower extremity polyneuropathy. See 38 C.F.R. § 19.21. In addition, although the Veteran did not specifically express disagreement with respect to his left lower extremity polyneuropathy, he submitted additional relevant private medical records prior to expiration of the appeal period. Specifically, a May 2011 private medical record noted that the Veteran had decreased sensation in a stocking distribution in his feet and absent ankle jerk reflexes. It also noted an assessment of polyneuropathy due to diabetes mellitus. Therefore, the July 2011 rating decision did not become final. See 38 C.F.R. § 3.156(b). In a September 2012 rating decision, the RO granted service connection for right and left upper extremity polyneuropathy. However, the RO did not address the Veteran’s right and left lower extremities. In a December 2018 rating decision, the RO granted service connection for right and left lower extremity peripheral neuropathy as secondary to the service-connected type II diabetes mellitus. The RO assigned separate 20 percent evaluations effective from October 19, 2018, finding that entitlement to increased evaluations was established from the date of claim. The Veteran submitted a NOD with the effective dates assigned in February 2019. The RO issued a statement of the case in June 2019, and the Veteran submitted a substantive appeal in July 2019. Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s April 21, 2011, claims for right and left lower extremity polyneuropathy remained pending until they were finally adjudicated in the December 2018 rating decision. The record does not contain any correspondence, communication, or other information prior to April 21, 2011, indicating an intent to file claims for service connection right and left lower extremity peripheral neuropathy or an increased rating for diabetes mellitus complications of peripheral neuropathy. The Veteran and his representative have not argued otherwise. In April 2001, the Veteran filed a claim for service connection for diabetes mellitus. In an October 2001 rating decision, the RO granted service connection for type II diabetes mellitus based on exposure to herbicide agents. The rating criteria for diabetes mellitus provides that compensable complications of the disorder are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In this case, however, the evidence of record at the time of the April 2001 claim and October 2001 rating decision did not suggest that the Veteran’s complications of diabetes mellitus included lower extremity peripheral neuropathy. The Board also acknowledges that the Veteran submitted statements regarding other complications of type II diabetes mellitus prior to April 21, 2011, including hypertension, a kidney disorder, a heart disorder, and high cholesterol. In this regard, in September 2001, the Veteran reported that he was concerned about the health complications that could arise from his diabetes mellitus. The Veteran also filed claims for service connection for hypertension, a kidney disorder, and high cholesterol as secondary to his service-connected type II diabetes mellitus. See September 2002 correspondence (high blood pressure and a kidney disorder) and May 2007 correspondence (hypertension and high cholesterol). However, he did not identify lower extremity peripheral neuropathy as a current complication of diabetes mellitus or otherwise express any intent to file claims for service connection for right and left lower extremity peripheral neuropathy. Moreover, the medical evidence of record did not suggest that the Veteran’s service-connected type II diabetes mellitus included complications of lower extremity peripheral neuropathy. In a July 2007 correspondence, the Veteran stated that his diabetes mellitus increased his risk for several disorders, including nerve disease. However, the Veteran did not report having current nerve disease or express any intent to file a claim for service connection for such a disorder. In addition, the Veteran was afforded a VA examination to address any complications of his diabetes mellitus in August 2007. Notably, the examiner concluded that he had no neurological complaints or complications from diabetes mellitus. Moreover, the Veteran specifically denied having a history of neuropathy. The Veteran’s statements prior to April 21, 2011, do not adequately identify the benefit sought to raise informal claims for service connection for right and left lower extremity peripheral neuropathy. Moreover, the lay and medical evidence of record do not support that the Veteran had lower extremity neuropathy that was a complication of his service-connected type II diabetes mellitus. VA is obligated to consider all possible bases for compensation; however, this does not mean that it is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Based on the foregoing, the Board concludes that the earliest date of claim for the right and left lower extremity peripheral neuropathy is April 21, 2011. Regarding the date entitlement arose, in a May 2011 private medical record, Dr. C.S.L. diagnosed the Veteran with neuropathy that was likely diabetic in origin. In so doing, he stated that the Veteran had decreased sensation in a stocking distribution in the feet, particularly to vibration. He also stated that the Veteran’s had diminished reflexes with trace reflexes at the knee and absent reflexes at the ankles. In an October 2018 private disability benefits questionnaire (DBQ), Dr. C.S.L. diagnosed the Veteran with diabetic polyneuropathy. In so doing, he identified the date of diagnosis as 2011 and noted that the Veteran was first evaluated in May 2011. The Board finds the May 2011 and October 2018 private medical statements from Dr. C.S.L. are probative on this matter, as they were provided by the Veteran’s treating physician who is familiar with his medical history. The Board does acknowledge that a June 2011 VA examiner stated that the Veteran did not have any motor or sensory deficits attributed to polyneuropathy. However, the examiner did not reconcile this conclusion with his examination findings that noted the Veteran had absent ankle jerk reflexes. In addition, in a November 2018 VA examination report, the examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities and identified the date of diagnosis as 2018. However, the examiner provided no explanation or supporting rationale for the identified date of diagnosis. Therefore, the Board finds that the June 2011 and November 2018 VA examination reports have less probative value than the private medical statements. Based on the foregoing, the Board finds that there is evidence supporting a finding that it was factually ascertainable that the Veteran’s right and lower extremity neuropathy manifested since his April 21, 2011, claims. However, it was not factually ascertainable that right and left lower extremity neuropathy manifested as a complication of diabetes mellitus prior to April 21, 2011. The Board has also considered whether an earlier effective date is warranted under the Nehmer provisions. The Veteran’s service personnel records reflect that he served in the Republic of Vietnam during his period of active duty from September 1966 to June 1969. As noted above, early-onset peripheral neuropathy is a covered herbicide disease. Effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide agent exposure. See 78 Fed. Reg. 173, 54763 – 54766 (September 6, 2013). The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide agent presumption to apply. To effectuate this change, VA replaced the terms “acute and subacute” and “transient” peripheral neuropathy with “early onset.” Under these amendments, early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnoses of neuropathy. In fact, a March 1969 service treatment record noted that the Veteran’s neurological system was within normal limits. His May 1969 separation examination also noted a normal clinical evaluation of the lower extremities and neurological system. The post-service medical evidence is also negative for any complaints or diagnoses of lower extremity peripheral neuropathy for decades after the Veteran’s separation from service. In this regard, an August 2001 VA Agent Orange examination noted that the Veteran had a negative neurological history. An October 2001 VA medical record noted that the Veteran had normal lower extremity strength, deep tendon reflexes, and sensation to monofilament testing. In an October 2002 VA examination, the examiner noted that the Veteran had reflexes were 1+ and equal. However, the Veteran’s sensation was intact to monofilament testing and no neurological complications of diabetes mellitus were diagnosed. A November 2005 private medical record noted that a physical examination revealed normal reflexes, sensation, strength, and tone in the lower extremities. During an August 2007 VA examination, the Veteran denied having a history of neuropathy or numbness of the feet. The examiner also noted that the Veteran had normal reflexes and that his vibratory sensory and motor systems were intact. Thereafter, a May 2011 private medical record noted complaints of lower extremity neurological symptoms and an impression of peripheral neuropathy. Based on the foregoing, the record contains no indication of early-onset peripheral neuropathy that manifested to a degree of 10 percent or more within one year after the Veteran’s last presumed exposure to herbicide agents. The Veteran and his representative have not contended otherwise. Therefore, the Board finds that the Veteran’s lower extremity peripheral neuropathy is not a “covered herbicide disease.” See 38 C.F.R. §§ 3.309(e), 3.816(b)(2). The Board also acknowledges that the Veteran was granted service connection for type II diabetes mellitus, which is a covered herbicide disease. 38 C.F.R. §§ 3.309(e) and 3.816(b)(2). The Veteran filed a claim for service connection for diabetes mellitus in April 2001. On May 8, 2001, diabetes mellitus was added to the list of herbicide diseases presumptively associated with exposure to Agent Orange in the Republic of Vietnam. See Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166 (May 8, 2001). However, as discussed above, the lay and medical evidence of record does not support that lower extremity neuropathy was a complication of diabetes mellitus prior to April 21, 2011. Therefore, the final stipulation, orders, and guidance provided in the Nehmer cases and VA’s resulting regulations are not applicable for the Veteran’s right and left lower extremity peripheral neuropathy. 38 C.F.R. § 3.816. Based on the foregoing, the Board finds that effective dates of April 21, 2011, but not earlier, are warranted for the awards of service connection for right and left lower extremity peripheral neuropathy. REASONS FOR REMAND Entitlement to service connection for hypertension The Veteran has contended that his hypertension is secondary to his service-connected type II diabetes mellitus. In a June 2007 private medical opinion, Dr. B.B. stated that the Veteran had a cluster of diseases commonly called metabolic syndrome. He explained that patients with one component of metabolic syndrome are more likely to also have the other components of the syndrome. He stated that well over 75 percent of diabetics will also develop hypertension. However, Dr. B.B.’s medical opinion was general in nature and did not clearly address whether the Veteran’s hypertension was caused or aggravated by his service-connected type II diabetes mellitus. In October 2002, August 2007, and May 2011 VA diabetes mellitus examinations, the examiners stated that the Veteran’s essential hypertension was not caused by or secondary to his diabetes mellitus. However, the examiners provided no supporting rationale for their opinions. Therefore, a remand is necessary to obtain an additional VA medical opinion. In addition, in January 2020, the Veteran submitted a copy the National Academies of Sciences, Engineering, and Medicine (NAS) “Veterans and Agent Orange: Update 11 (2018),” which upgraded hypertension from the limited or suggestive evidence of an association category to the sufficient evidence of an association category. However, the VA medical opinions of record do not address the relationship, if any, between the Veteran’s hypertension and his conceded exposure to herbicide agents. Therefore, a remand is necessary to obtain a VA medical opinion that addresses this theory of entitlement. Entitlement to service connection for sleep apnea The Veteran has contended that his sleep apnea is secondary to his service-connected type II diabetes mellitus, PTSD, and heart disability. In a September 2015 private medical opinion, Dr. G.J.B. opined that it was more likely than not that the Veteran’s obstructive sleep apnea was “adjunct to his current ischemic heart disease and aggravating this condition.” However, Dr. G.J.B. did not clearly address whether the Veteran’s sleep apnea was caused or aggravated by his service-connected heart disability. Rather, he appears to have opined that the Veteran’s sleep apnea aggravated his ischemic heart disease. In a March 2016 VA medical opinion, the examiner opined that the Veteran’s sleep apnea was less likely than not proximately due to or a result of his service-connected coronary artery disease status post CABG. However, the examiner did not provide an opinion as to whether the Veteran’s sleep apnea is aggravated by his service-connected heart disability. Therefore, a remand is necessary to obtain an additional VA medical opinion to ascertain whether the Veteran’s sleep apnea is secondary to his service-connected heart disability. In addition, in January 2020, the Veteran’s representative submitted medical articles regarding a potential relationship between sleep apnea and type II diabetes mellitus. However, the VA medical opinions of record do not address whether the Veteran’s sleep apnea is caused or aggravated by his service-connected type II diabetes mellitus. During the December 2019 Board hearing, the Veteran also stated that he believes that his sleep apnea is related to the anxiety and stress of combat. In support of his claim, the Veteran submitted a medical article indicating that disturbed sleep and sleep deprivation while in combat paired with physical and psychological stress may play a role in the relationship between PTSD and sleep apnea. However, the VA medical opinions of record do not address this theory of entitlement. Therefore, a remand is necessary. Entitlement to increased evaluations for right and left upper extremity polyneuropathy and for right and left lower extremity peripheral neuropathy The Veteran was most recently afforded a VA examination in connection with his upper extremity polyneuropathy and lower extremity peripheral neuropathy in November 2018. During the December 2019 Board hearing, the Veteran reported that his upper and lower extremity neuropathy had worsened in severity. See Board hearing transcript, at 12 and 16. An October 2019 private medical record also noted that the Veteran’s triceps, bicep, brachioradiales, patellar, and Achilles reflexes were absent, bilaterally. VA’s General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a remand is necessary to obtain an additional VA examination. Entitlement to earlier effective dates for the assignment of 20 percent evaluations for right and left upper extremity polyneuropathy The Board finds that the issues of entitlement to earlier effective dates for the assignment of 20 percent evaluations for right and left upper extremity polyneuropathy are inextricably intertwined with the increased rating claims for those disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Therefore, a remand is required. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hypertension, sleep apnea, upper extremity polyneuropathy, and lower extremity peripheral neuropathy that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran’s hypertension. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension manifested in or is otherwise causally or etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that the disorder is not presumed to be associated with herbicide exposure). The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is either caused by or aggravated by his service-connected type II diabetes mellitus. In rendering his or her opinion, the examiner should consider the medical articles submitted by the Veteran’s representative in January 2020, including the NAS “Veterans and Agent Orange: Update 11 (2018),” which upgraded hypertension from the limited or suggestive evidence of an association category to the sufficient evidence of an association category. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any additional records are associated with the claims file, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran’s sleep apnea. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. He or she should specifically consider the medical articles submitted by the Veteran’s representative. See January 2020 correspondence. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s sleep apnea manifested in or is otherwise causally or etiologically related to his military service. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran’s sleep apnea was either caused by or aggravated by his service-connected type II diabetes mellitus, PTSD, and/or coronary artery disease status post CABG. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right and left upper extremity polyneuropathy and right and left lower extremity neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disabilities. In particular, he or she should identify the affected nerve or nerve group. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, moderately severe (for any sciatic nerve involvement), or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should distinguish the symptomatology attributable to each nerve. If the examiner is unable to distinguish the symptoms attributed to each nerve, the examiner should so state in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.