Citation Nr: 21008842 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-29 777 DATE: February 18, 2021 ORDER The appeal of the claim for an effective date earlier than March 31, 2017 for the award of service connection for bipolar disorder has been withdrawn. The appeal of the claim for an initial rating greater than 70 percent for bipolar disorder has been withdrawn. The appeal of the claim for an initial rating greater than 60 percent for congestive heart failure prior to March 31, 2017 has been withdrawn. An effective date earlier than January 16, 2014 for the award of service connection for diabetes mellitus type II is denied. An effective date earlier than January 16, 2014 for the award of service connection for diabetic nephropathy with hypertension is denied. An effective date earlier than January 16, 2014 for the award of service connection for left sciatic nerve peripheral neuropathy is denied. An effective date earlier than January 16, 2014 for the award of service connection for right sciatic nerve peripheral neuropathy is denied. An effective date earlier than January 16, 2014 for the award of service connection for left femoral nerve peripheral neuropathy is denied. An effective date earlier than January 16, 2014 for the award of service connection for right femoral nerve peripheral neuropathy is denied. An effective date earlier than January 16, 2014 for the award of service connection for left upper extremity peripheral neuropathy is denied. An effective date earlier than January 16, 2014 for the award of service connection for right upper extremity peripheral neuropathy is denied. The appeal of the claim for an effective date earlier than October 26, 2017 for the award of a 40 percent rating for chronic prostatitis is dismissed. A separate compensable rating for erectile dysfunction is denied. An initial compensable rating prior to March 1, 2017, greater than 60 percent from March 1, 2017 to June 12, 2017, and greater than 80 percent from June 13, 2017 for diabetic nephropathy with hypertension. An initial rating greater than 40 percent for left sciatic nerve peripheral neuropathy is denied. An initial rating greater than 40 percent for right sciatic nerve peripheral neuropathy is denied. An initial rating greater than 20 percent for left femoral nerve peripheral neuropathy is denied. An initial rating greater than 20 percent for right femoral nerve peripheral neuropathy is denied. An initial rating greater than 10 percent prior to July 24, 2020 and greater than 20 percent thereafter for left upper extremity peripheral neuropathy is denied. An initial rating greater than 10 percent prior to April 10, 2018 for right upper extremity nerve peripheral neuropathy is denied. An initial rating of 30 percent from April 10, 2018 to July 23, 2020 for right upper extremity nerve peripheral neuropathy is granted. An initial rating greater than 30 percent from April 10, 2018 for right upper extremity nerve peripheral neuropathy is denied. REMANDED An effective date earlier than January 16, 2014 for the award of service connection for erectile dysfunction is remanded. Service connection for sleep apnea is remanded. An initial rating greater than 20 percent for diabetes mellitus type II with erectile dysfunction is remanded. FINDINGS OF FACT 1. On August 13, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of appeal of the claims for an effective date earlier than March 31, 2017 for the award of service connection for bipolar disorder, an initial rating greater than 70 percent for bipolar disorder, and an initial rating greater than 60 percent for congestive heart failure prior to March 31, 2017 is requested. 2. On January 16, 2014, VA received the Veteran’s original claim for service connection for diabetes mellitus type II. 3. In an October 2018 decision, the Board dismissed the appeal of the claim for higher initial ratings for chronic prostatitis, rated 40 percent effective January 23, 2014, 0 percent effective May 11, 2017, and 40 percent effective October 26, 2017. The Veteran did not appeal that decision, and it is final. 4. There has been no allegation of clear and unmistakable error in the October 2018 Board decision. 5. The Veteran’s erectile dysfunction is not manifested by a deformity of the penis. 6. Prior to March 1, 2017, the Veteran’s diabetic nephropathy with hypertension had not been manifested by renal dysfunction, high blood pressure, or laboratory findings sufficient to warrant a compensable rating during this time period. 7. From March 1, 2017 to June 12, 2017, the Veteran’s diabetic nephropathy with hypertension had not been manifested by renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 8. From June 13, 2017, the Veteran’s diabetic nephropathy with hypertension has not been manifested by renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. 9. The Veteran’s left sciatic nerve peripheral neuropathy has not been manifested by severe incomplete paralysis of the sciatic nerve. 10. The Veteran’s right sciatic nerve peripheral neuropathy has not been manifested by severe incomplete paralysis of the sciatic nerve. 11. The Veteran’s left femoral nerve peripheral neuropathy has not been manifested by severe incomplete paralysis of the femoral nerve. 12. The Veteran’s right femoral nerve peripheral neuropathy has not been manifested by severe incomplete paralysis of the femoral nerve. 13. Prior to July 24, 2020, the Veteran’s left upper extremity peripheral neuropathy had not been manifested by moderate incomplete paralysis of the ulnar nerve. 14. From July 24, 2020, the Veteran’s left upper extremity peripheral neuropathy has not been manifested by severe incomplete paralysis of the ulnar nerve. 15. Prior to April 10, 2018, the Veteran’s right upper extremity peripheral neuropathy had not been manifested by moderate incomplete paralysis of the ulnar nerve. 16. Resolving reasonable doubt in the Veteran’s favor, from April 10, 2018 to July 23, 2020, his right upper extremity peripheral neuropathy had been manifested by moderate incomplete paralysis of the ulnar nerve. 17. From April 10, 2018, the Veteran’s right upper extremity peripheral neuropathy has not been manifested by severe incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claims for an effective date earlier than March 31, 2017 for the award of service connection for bipolar disorder, an initial rating greater than 70 percent for bipolar disorder, and an initial rating greater than 60 percent for congestive heart failure prior to March 31, 2017 by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an effective date earlier than January 16, 2014 for the award of service connection for diabetes mellitus type II have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 3. The criteria for an effective date earlier than January 16, 2014 for the awards of service connection for diabetic nephropathy with hypertension, left sciatic nerve peripheral neuropathy, right sciatic nerve peripheral neuropathy, left femoral nerve peripheral neuropathy, right femoral nerve peripheral neuropathy, left upper extremity peripheral neuropathy, and right upper extremity peripheral neuropathy, all as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 4. There is no legal basis to grant an effective date earlier than October 26, 2017 for the award of a 40 percent rating for chronic prostatitis. 38 U.S.C. §§ 5110, 5109A, 7105(c); 38 C.F.R. § 3.400. 5. The criteria for a separate compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.115b, Diagnostic Code 7522. 6. The criteria for an initial compensable rating prior to March 1, 2017, greater than 60 percent from March 1, 2017 to June 12, 2017, and greater than 80 percent from June 13, 2017 for diabetic nephropathy with hypertension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7101, 4.115, 4.115b, Diagnostic Code 7541. 7. The criteria for an initial rating greater than 40 percent for left sciatic nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 8. The criteria for an initial rating greater than 40 percent for right sciatic nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 9. The criteria for an initial rating greater than 20 percent for left femoral nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 10. The criteria for an initial rating greater than 20 percent for right femoral nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 11. The criteria for an initial rating greater than 10 percent prior to July 24, 2020 and greater than 20 percent thereafter for left upper extremity nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. 12. The criteria for an initial rating greater than 10 percent prior to April 10, 2018 for right upper extremity nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. 13. The criteria for an initial rating of 30 percent from April 10, 2018 to July 23, 2020 for right upper extremity nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. 14. The criteria for an initial rating greater than 30 percent from April 10, 2018 for right upper extremity nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1954 to May 1974. [In an August 2020 decision, the Board dismissed the appeal of the claim for an effective date earlier than March 31, 2017 for the grant of special monthly compensation based on housebound status and denied the claim for an effective date earlier than July 9, 2015 for the grant of service connection for congestive heart failure.] Withdrawn Claims 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 by his or her authorized representative. 38 C.F.R. § 19.55. Effective date earlier than March 31, 2017 for the award of service connection for bipolar disorder Initial rating greater than 70 percent for bipolar disorder Initial rating greater than 60 percent for congestive heart failure prior to March 31, 2017 In the present case, the appellant has withdrawn the appeal of the claims for an effective date earlier than March 31, 2017 for the award of service connection for bipolar disorder, an initial rating greater than 70 percent for bipolar disorder, and an initial rating greater than 60 percent for congestive heart failure prior to March 31, 2017. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these claims, and they are dismissed. Effective Dates Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). A claimant or his or her representative who indicates a desire to file for benefits under the laws administered by VA by a communication or action that does not meet the standards of a complete claim is considered a request for an application form for benefits. Upon receipt of such a communication or action, the Secretary shall notify the claimant and his or her representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). A claimant or his or her representative may indicate a desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Service connection for diabetes mellitus type II A January 16, 2014 report of telephone contact reflects the Veteran’s intent to file a claim for service connection for diabetes mellitus type II. VA then received his complete application for service connection for diabetes mellitus type II on February 20, 2014. In an October 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for diabetes mellitus type II and assigned an effective date of January 16, 2014, based on the date of receipt of the intent to file, as the complete application was received within one year of that date. The intent to file was received more than one year after the Veteran’s separation from active service. While the Board is sympathetic to the Veteran’s situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Veteran has been assigned an effective date based on of the date of receipt of his claim for service connection. The record does not show, and the Veteran does not assert, that he filed an earlier claim for the disability. Thus, the Board finds that January 16, 2014 is the proper effective date for the award of service connection for diabetes mellitus type II. Accordingly, the Board concludes that an effective date earlier than January 16, 2014 for the award of service connection for diabetes mellitus type II is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service connection for diabetic nephropathy with hypertension Service connection for left sciatic nerve peripheral neuropathy Service connection for right sciatic nerve peripheral neuropathy Service connection for left femoral nerve peripheral neuropathy Service connection for right femoral nerve peripheral neuropathy Service connection for left upper extremity peripheral neuropathy Service connection for right upper extremity peripheral neuropathy Service connection for diabetic nephropathy with hypertension, left sciatic nerve peripheral neuropathy, right sciatic nerve peripheral neuropathy, left femoral nerve peripheral neuropathy, right femoral nerve peripheral neuropathy, left upper extremity peripheral neuropathy, and right upper extremity peripheral neuropathy was granted effective January 16, 2014. Service connection for each of these disabilities was granted as secondary to diabetes mellitus type II. As such, an effective date earlier than the effective date of the underlying diabetes mellitus type II is simply not warranted. The currently assigned effective date of the awards of service connection for the Veteran’s diabetic nephropathy with hypertension and the various peripheral neuropathies is the same as that of service connection for diabetes mellitus type II. There is simply no legal basis for the assignment of an earlier effective date. Thus, January 16, 2014 is the proper effective date for the awards of service connection these secondary disabilities. Accordingly, the Board concludes that an effective date earlier than January 16, 2014 for the awards of service connection for diabetic nephropathy with hypertension, left and right sciatic nerve peripheral neuropathy, left and right femoral nerve peripheral neuropathy, and left and right upper extremity peripheral neuropathy is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. 40 percent rating for chronic prostatitis In a June 2017 rating decision, the AOJ granted service connection for benign prostatic hypertrophy with chronic prostatitis and assigned an initial 40 percent rating effective January 23, 2014. In July 2017, the Veteran filed a notice of disagreement seeking a higher initial rating. In an October 2017 rating decision codesheet, the AOJ recharacterized the disability as chronic prostatitis and reduced the rating to 0 percent effective May 11, 2017. In a February 2018 rating decision, the AOJ increased the rating for chronic prostatitis to 40 percent effective October 26, 2017. On the same day, the AOJ issued a statement of the case that addressed the initial staged rating for chronic prostatitis, rated 40 percent effective January 23, 2014, 0 percent effective May 11, 2017, and 40 percent effective October 26, 2017. In March 2018, the Veteran filed a VA Form 9. In April 2018, the Veteran filed a notice of disagreement seeking a higher rating and earlier effective date for chronic prostatitis. In July 2018, the Veteran, through his representative, withdrew the appeal of the claim for higher initial ratings for chronic prostatitis. Therefore, in an October 2018 decision, the Board dismissed the appeal. The Veteran did not appeal that decision. That decision with respect to the initial staged ratings, which includes the effective dates of those ratings, is final. 38 U.S.C. § 7104. Where a rating decision which established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296 (2006). There is no “freestanding” earlier effective date claim which could be raised at any time. Id. at 299. In an August 2020 statement, the Veteran’s representative asserted that the AOJ did not address the April 2018 notice of disagreement to the February 2018 rating decision on the increased rating and effective date for prostatitis. In August 2020, the AOJ issued a statement of the case on the issue of an effective date earlier than October 26, 2017 for the award of a 40 percent rating for chronic prostatitis. In September 2020, the Veteran filed a VA Form 9. While the Veteran asserts that an effective date earlier than October 26, 2017 for the award of a 40 percent rating for chronic prostatitis is warranted, the “claim” for an earlier effective date was filed after the October 2018 Board decision became final. Because the Veteran did not appeal that decision as to the October 26, 2017 effective date of the 40 percent rating for chronic prostatitis, that decision became final as to that matter. The only other method to obtain an earlier effective date is to allege that the October 2018 Board decision contained CUE. To date, no such claim has been filed. To the extent the Veteran’s representative asserts that the April 2018 notice of disagreement to the award of the 40 percent rating for chronic prostatitis effective October 26, 2017 in the February 2018 rating decision remains outstanding, that award of the 40 percent rating was part of the initial staged rating of the disability and addressed in the statement of the case. Thus, the July 2018 withdrawal of the appeal of the claim for higher initial ratings for chronic prostatitis withdrew that aspect of the claim as well. Therefore, the October 2018 Board decision that dismissed the appeal is likewise final as to that aspect of the claim. Given the procedural history of this issue, the Board has no alternative but to dismiss the appeal as to the issue of an effective date earlier than October 26, 2017 for the award of a 40 percent rating for chronic prostatitis without prejudice to the Veteran’s filing a CUE claim. Sabonis, 6 Vet. App. 42. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Erectile dysfunction The Veteran’s erectile dysfunction is evaluated together with his diabetes mellitus type II. Thus, it is currently a noncompensable (0 percent) complication of his diabetes. He seeks a separate compensable rating for the erectile dysfunction. To warrant a compensable 20 percent rating for erectile dysfunction, there must also be deformity of the penis. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Here, however, the record does not show that the Veteran has a deformity of the penis. A July 2020 VA male reproductive organ conditions examination revealed a normal penis, and there is no evidence otherwise showing that he has a penis deformity. Thus, the Board finds that the Veteran’s erectile dysfunction is not manifested by a deformity of the penis. Accordingly, a separate compensable rating for erectile dysfunction is not warranted. However, the Board notes that the Veteran is already receiving special monthly compensation for the loss of use of a creative organ. In conclusion, a separate compensable rating for the service-connected erectile dysfunction is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetic nephropathy with hypertension In a February 2018 rating decision, the AOJ granted service connection for hypertension and nephropathy as secondary to the service-connected diabetes mellitus type II and evaluated the disabilities together with diabetes, effective January 16, 2014. Thus, they were initially noncompensable complications of diabetes. In an August 2020 rating decision, effective March 1, 2017, the AOJ separated out the nephropathy and hypertension and evaluated the now diabetic nephropathy with hypertension under Diagnostic Code 7101-7541. 38 C.F.R. § 4.115b. His disability is evaluated as residuals under Diagnostic Code 7541 for renal involvement in diabetes mellitus. 38 C.F.R. § 4.27. Thus, his disability is rated 0 percent from January 16, 2014, 60 percent from March 1, 2017, and 80 percent from June 13, 2017. Under Diagnostic Code 7541, renal involvement in diabetes mellitus is to be rated as renal dysfunction. 38 C.F.R. § 4.115b. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating. Renal dysfunction with constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent rating. Renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101 warrants a 30 percent rating. 38 C.F.R. § 4.115. Under Diagnostic Code 7101, hypertension manifested by diastolic blood pressure predominantly 120 or more warrants a 40 percent rating. Hypertension manifested by diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more with a requirement of continuous medication for control warrants a 10 percent rating. 38 C.F.R. § 4.104. From January 16, 2014 to February 28, 2017, the Veteran’s diabetic nephropathy with hypertension had not been manifested by renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling. Laboratory results through February 28, 2017 do not show albumin constant or recurring with hyaline and granular casts or red blood cells. There are no complaints or findings of edema or a history of diastolic blood pressure predominantly 100 or more, i.e., the criteria for a 10 percent rating for hypertension. Thus, an initial compensable rating prior to March 1, 2017 is not warranted. From March 1, 2017 to June 12, 2017, the Veteran’s diabetic nephropathy with hypertension had not been manifested by renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Private medical records from January 2014 to June 2017 show that BUN was less than 40 mg% and creatinine was less than 4 mg%. They do not show that the Veteran was in poor health due to his diabetic nephropathy with hypertension. While he may have had limitation of exertion, it was due to his congestive heart failure. Thus, a higher 80 percent rating is not warranted. A June 13, 2017 private medical record shows a BUN of 40 mg%. Based on that laboratory finding, the Veteran’s diabetic nephropathy with hypertension has been assigned an 80 percent rating from that date. However, an even higher 100 percent rating is not warranted. At an October 2017 VA kidney conditions examination, the Veteran reported a diagnosis of diabetic nephropathy and that he takes Lisinopril for renal protection from diabetes. The examiner indicated that the Veteran has renal dysfunction with persistent edema but does not require regular dialysis. The examiner also indicated that the Veteran does not have hypertension and that laboratory tests showed a BUN of 24 mg%, creatinine of 2.3 mg%, and no albuminuria. The examiner indicated that the Veteran’s kidney condition does not impact his ability to work. At a July 2020 VA kidney conditions examination, the Veteran denied any outward symptoms of his diabetic nephropathy with hypertension. He reported that he was prescribed Lisinopril for renal protection, but it was discontinued as it lowered his diastolic pressure too much. The examiner indicated that the Veteran’s treatment plan does not include taking continuous medication. The examiner indicated that the Veteran has renal dysfunction but does not require regular dialysis or have any signs or symptoms due to renal dysfunction such as edema or albuminuria. The examiner also indicated that the Veteran does not have hypertension. The examiner noted that April 2019 laboratory tests showed a BUN of 40 mg% and creatinine of 1.92 mg%. The examiner indicated that the Veteran’s kidney condition does not impact his ability to work. At a July 2020 VA hypertension examination, the Veteran denied a history of a diastolic blood pressure elevation to predominantly 100 or more. Examination revealed diastolic blood pressure below 70. The examiner indicated that the Veteran’s hypertension does not impact his ability to work. Given the above, from June 13, 2017, there is no evidence that the Veteran has required regular dialysis, and both the October 2017 and July 2020 examiners indicated that his kidney condition does not impact his ability to work. At the July 2020 examination, the Veteran denied any outward symptoms of his diabetic nephropathy. Thus, the Veteran’s diabetic nephropathy with hypertension has not been manifested by renal dysfunction requiring regular dialysis or preclusion of more than sedentary activity. While the October 2017 examiner noted edema, there was no albuminuria. There was also no evidence of persistent edema and albuminuria at the July 2020 examination. Private medical records do not show a BUN greater than 80mg%; creatinine greater than 8mg%; or markedly decreased function of kidney or other organ systems, to include cardiovascular. Thus, a higher 100 percent rating is not warranted. In conclusion, an initial compensable rating prior to March 1, 2017, greater than 60 percent from March 1, 2017 to June 12, 2017, and greater than 80 percent from June 13, 2017 for the service-connected diabetic nephropathy with hypertension is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Left sciatic nerve peripheral neuropathy Right sciatic nerve peripheral neuropathy Left femoral nerve peripheral neuropathy Right femoral nerve peripheral neuropathy Effective January 1, 2014, the Veteran’s left and right sciatic nerve peripheral neuropathies have been rated 40 percent each under Diagnostic Code 8599-8520. 38 C.F.R. § 4.124a. They have been rated by analogy under Diagnostic Code 8520 for disability of the sciatic nerve. 38 C.F.R. §§ 4.20, 4.27. As Diagnostic Code 8520 is specific to disability of the sciatic nerve, the Veteran’s disabilities are appropriately rated. Under that code, a maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost. For incomplete paralysis, a 60 percent rating is warranted when severe with marked muscular atrophy, 40 percent when moderately severe, and 20 percent when moderate. 38 C.F.R. § 4.124a. Effective January 1, 2014, the Veteran’s left and right femoral nerve peripheral neuropathies have been rated 20 percent each under Diagnostic Code 8599-8526. 38 C.F.R. § 4.124a. They have been rated by analogy under Diagnostic Code 8526 for disability of the anterior crural, or femoral, nerve. 38 C.F.R. §§ 4.20, 4.27. As Diagnostic Code 8526 is specific to disability of the femoral nerve, the Veteran’s disabilities are appropriately rated. Under that code, complete paralysis of the femoral nerve with paralysis of quadriceps extensor muscles warrants a maximum 40 percent rating. For incomplete paralysis, a 30 percent rating is warranted when severe and 20 percent when moderate. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with this and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, may be evaluated as severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. In a March 2017 disability benefits questionnaire, a private physician indicated that the Veteran had numbness and paresthesias in the lower extremities. Examination revealed strength of 5/5 at the knees and 3/5 at the ankles. Reflexes were 2+ at the left knee and 1+ at the right knee and both ankles. Sensation to light touch was normal at the knees, decreased at the ankles, and absent at the feet. Position sense was decreased on the right and absent on the left. Vibration sensation and cold sensation were absent. There was no muscle atrophy. The physician noted trophic changes of edema, loss of hair, and smooth, shiny skin. The physician indicated that there was moderate incomplete paralysis of the sciatic nerve in each lower extremity. The physician remarked that the Veteran’s peripheral neuropathy prevents him from sitting or standing for prolonged periods. In an October 2017 VA examination, the examiner indicated that the Veteran had moderate paresthesias and numbness in the lower extremities. Examination revealed 4/5 strength throughout. Reflexes were 2+ throughout. Sensation to light touch was normal at the knees, and decreased at the ankles and feet. Position sense was normal. Vibration sensation and cold sensation were absent. There was no muscle atrophy. The examiner noted trophic changes of loss of hair with smooth, shiny skin and dystrophic toenails. The examiner indicated that there was moderately severe incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve in each lower extremity. The examiner remarked that the Veteran’s peripheral neuropathy limits his ability to perform prolonged walking or standing, and prohibits working on elevated surfaces or ladders. In an April 2020 report, a private physician indicated that due to the peripheral neuropathy the Veteran is not able to balance while standing on one foot, propel himself forward to take a large step, stand from a seated position without using his hands to push off, stand on his toes, or easily climb a set of stairs. The physician indicated that the Veteran is a fall risk and the functionality of his lower extremities is so diminished that amputation with prosthesis would provide functionality equal to that of his original limbs. In a July 2020 VA examination, the examiner indicated that the Veteran had moderate paresthesias and severe numbness in the lower extremities. Examination revealed 4/5 strength throughout except at the left knee where it was 3/5. Reflexes were 1+ throughout. Sensation to light touch was decreased throughout. Position sense was decreased, and vibration sensation and cold sensation were absent. There was no muscle atrophy. The examiner noted trophic changes of loss of hair with smooth, shiny skin and dystrophic toenails. The examiner indicated that there was moderate incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve in each lower extremity. The examiner remarked that the Veteran’s peripheral neuropathy does not impact his ability to work. To warrant a higher 60 percent rating under Diagnostic Code 8520 for left and right sciatic nerve peripheral neuropathies, the disabilities must be manifested by severe incomplete paralysis with marked muscular atrophy. However, VA examiners have described the peripheral neuropathy as only moderate or moderately severe, and examinations have shown no muscle atrophy. Even the private physician in March 2017 described the peripheral neuropathy as only moderate. Thus, the evidence does not indicate severe incomplete paralysis with marked muscular atrophy. The Board notes that in April 2020 the private physician indicated that the Veteran’s peripheral neuropathy has resulted in loss of use of his lower extremities. However, the physician provided no support for that conclusion, to include any contemporaneous treatment records indicating such disability. On the contrary, the July 2020 VA examination report and August 2020 and September 2020 private medical records show that the Veteran had normal to slightly reduced strength in the extremities, and there is no evidence otherwise indicating that the Veteran has disability comparable to loss of use of his lower extremities. As such, the Board finds that the physician’s assessment of the severity of the Veteran’s disabilities, as they relate to the rating criteria, is of little probative value and outweighed by the other evidence of record. Hayes v. Brown, 9 Vet. App. 67 (1996). Given the above, the Board finds that the Veteran’s left and right sciatic nerve peripheral neuropathies have not been manifested by severe incomplete paralysis with marked muscular atrophy. Thus, a higher 60 percent rating is not warranted for either lower extremity. To warrant a higher 30 percent rating under Diagnostic Code 8526 for left and right femoral nerve peripheral neuropathies, the disabilities must be manifested by severe incomplete paralysis. The femoral nerve affects the quadriceps extensor muscles, which are involved in knee extension. Again, VA examiners and a private physician have described the peripheral neuropathy as at most moderately severe. Examinations have generally shown only slightly reduced strength. While the July 2020 examination revealed left knee strength of 3/5, which indicates no movement against resistance, the Veteran was still able to move his knee against gravity, i.e., extend the knee. As such, that finding does not reflect severe disability. There was also no muscle atrophy. Given the above, the Board finds that the Veteran’s left and right femoral nerve peripheral neuropathies have not been manifested by severe incomplete paralysis. Thus, a higher 30 percent rating is not warranted for either lower extremity. In conclusion, initial ratings greater than 40 percent for service-connected left and right sciatic nerve peripheral neuropathies and initial ratings greater than 20 percent for service-connected left and right femoral nerve peripheral neuropathies are not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Left upper extremity peripheral neuropathy Right upper extremity peripheral neuropathy Effective January 1, 2014, the Veteran’s left and right upper extremity peripheral neuropathies have been evaluated under Diagnostic Code 8599-8516. 38 C.F.R. § 4.124a. They have been rated by analogy under Diagnostic Code 8516 for disability of the ulnar nerve. 38 C.F.R. §§ 4.20, 4.27. As Diagnostic Code 8516 is specific to disability of the ulnar nerve, the Veteran’s disabilities are appropriately rated. The Veteran is right-handed, so that is the major extremity. The left upper extremity peripheral neuropathy has been rated 10 percent prior to July 24, 2020 and 20 percent thereafter. Under Diagnostic Code 8516, ulnar nerve disability of the minor extremity warrants a maximum 50 percent rating when there is complete paralysis with the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. For incomplete paralysis, a 30 percent rating is warranted when severe, 20 percent when moderate, and 10 percent when mild. 38 C.F.R. § 4.124a. The right upper extremity peripheral neuropathy has been rated 10 percent prior to July 24, 2020 and 30 percent thereafter. Under Diagnostic Code 8516, ulnar nerve disability of the major extremity warrants a maximum 60 percent rating when there is complete paralysis with the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. For incomplete paralysis, a 40 percent rating is warranted when severe, 30 percent when moderate, and 10 percent when mild. 38 C.F.R. § 4.124a. In a March 2017 disability benefits questionnaire, a private physician indicated that the Veteran had numbness and paresthesias in the upper extremities. Examination revealed strength of 5/5 at the elbows and 4/5 at the wrists and hands, 4/5 grip strength, and 5/5 pinch strength. Reflexes were 2+ throughout. Sensation to light touch was normal at the shoulders and forearms, and decreased at the hands. Position sense and cold sensation were normal. Vibration sensation was decreased. There was no muscle atrophy. The physician indicated that there was mild incomplete paralysis of the ulnar nerve in each upper extremity. The physician remarked that the Veteran’s peripheral neuropathy of the upper extremities prevents him from performing repetitive activities with his hands. At an October 2017 VA examination, the Veteran reported a recent onset of numbness and tingling in the ring and little fingers. He complained of mild paresthesias and numbness in the upper extremities. Examination revealed 4/5 strength throughout, and 3/5 grip strength and 3/5 pinch strength. Reflexes were 2+ throughout. Sensation to light touch was normal at the shoulders and forearms, and decreased at the hands. Position sense, vibration sensation, and cold sensation were all normal. There was no muscle atrophy. The examiner indicated that there was mild incomplete paralysis of the ulnar nerve in each upper extremity. The examiner did not indicate any functional impact of the peripheral neuropathy of the upper extremities on the Veteran’s ability to work. At an April 10, 2018 VA hand examination, the Veteran reported that he frequently drops objects because of the numbness in the right hand. Examination revealed grip strength of 4/5 on the right and 5/5 on the left. The examiner stated that the Veteran has slightly diminished grip in the right hand, making it difficult to grip objects, and frequently drops objects because of numbness and tingling in the right hand. The examiner stated that the left hand was not affected. In an April 2020 report, a private physician indicated that the Veteran is not able to grasp and manipulate small objects or perform repetitive tasks with his hands due to his peripheral neuropathy. The physician also indicated that the functionality of the Veteran’s upper extremities is so diminished that amputation with prosthesis would provide functionality equal to that of the Veteran’s original limbs. At a July 2020 VA examination, the Veteran reported constant numbness in the ring and little fingers. He complained of moderate paresthesias and numbness in the upper extremities. Examination revealed 5/5 strength throughout, 5/5 pinch strength, and 4/5 grip strength. Reflexes were 1+ throughout. Sensation to light touch was normal at the right forearm but decreased elsewhere. Position sense and vibration sensation were normal, and cold sensation was decreased. There was no muscle atrophy. The examiner indicated that there was moderate incomplete paralysis of the ulnar nerve in each upper extremity. The examiner remarked that the Veteran’s peripheral neuropathy does not impact his ability to work. Given the above, the record indicates that the Veteran’s right upper extremity peripheral neuropathy worsened by the time of the April 10, 2018 examination. While grip strength was only slightly reduced, the numbness from the peripheral neuropathy made it difficult for the Veteran to grasp objects and he was frequently dropping things. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, from April 10, 2018, his right upper extremity peripheral neuropathy has been manifested by moderate incomplete paralysis of the ulnar nerve. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Thus, an initial 30 percent rating is warranted from April 10, 2018 to July 23, 2020. However, the 30 percent rating is not warranted prior to April 10, 2018. Prior to then, both a private physician and a VA examiner have described the peripheral neuropathy as only mild. Examinations have shown normal or only slightly reduced strength and normal reflexes, with sensation only decreased at the hand. The October 2017 examination indicates that the numbness in the ring and little fingers only recently began and was mild at that time. Thus, the Board finds that prior to April 10, 2018, the Veteran’s right upper extremity peripheral neuropathy had not been manifested by moderate incomplete paralysis of the ulnar nerve. Thus, an initial rating greater than 10 prior to April 10, 2018 is not warranted. Further, an even higher 40 percent rating is not warranted at any time since April 10, 2018. The July 2020 examiner described the peripheral neuropathy as only moderate, and examination revealed full strength with only slightly reduced grip strength, no atrophy, and only slightly reduced reflexes. Sensation was either normal or decreased, but not absent. The examiner also indicated that the peripheral neuropathy does not affect the Veteran’s ability to work. The Board notes that in April 2020 the private physician indicated that the Veteran’s peripheral neuropathy has resulted in loss of use of his upper extremities. However, the physician provided no support for that conclusion, to include any contemporaneous treatment records indicating such disability. On the contrary, the July 2020 VA examination report and August 2020 and September 2020 private medical records show that the Veteran had normal to slightly reduced strength in the extremities, and there is no evidence otherwise indicating that the Veteran has disability comparable to loss of use of his upper extremities. As such, the Board finds that the physician’s assessment of the severity of the Veteran’s disabilities, as they relate to the rating criteria, is of little probative value and outweighed by the other evidence of record. Hayes, 9 Vet. App. 67. Given the above, the Board finds that from April 10, 2018, the Veteran’s right upper extremity peripheral neuropathy has not been manifested by severe incomplete paralysis of the ulnar nerve. Thus, an initial rating greater than 30 percent from April 10, 2018 is not warranted. The Board has resolved the benefit of the doubt in granting a higher 30 percent rating for the service-connected right upper extremity peripheral neuropathy from April 10, 2018. However, as the preponderance of the evidence is against even higher rating or a rating greater than 10 percent prior to that date, those aspects of the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. With respect to the left upper extremity, prior to July 24, 2020, both a private physician and a VA examiner have described the peripheral neuropathy as only mild. Examinations have shown normal or only slightly reduced strength and normal reflexes, with sensation only decreased at the hands. As such, the Board finds that prior to July 24, 2020, the Veteran’s left upper extremity peripheral neuropathy had not been manifested by moderate incomplete paralysis of the ulnar nerve. An initial rating greater than 10 prior to July 24, 2020 is not warranted. From July 24, 2020, examination that day revealed full strength with only slightly reduced grip strength, no atrophy, and only slightly reduced reflexes, and sensation was either normal or decreased, but not absent. Moreover, the examiner described the peripheral neuropathy as only moderate and indicated that it does not affect the Veteran’s ability to work. The Board again notes the private physician’s April 2020 conclusion that the Veteran’s peripheral neuropathy has resulted in loss of use of the upper extremities, but points out that the conclusion is not supported by any contemporaneous evidence of record. Given the above, the Board finds that from July 24, 2020, the Veteran’s left upper extremity peripheral neuropathy has not been manifested by severe incomplete paralysis of the ulnar nerve. Thus, an initial rating greater than 20 percent from July 24, 2020 is not warranted. In conclusion, an initial rating greater than 10 percent prior to July 24, 2020 and greater than 20 percent thereafter for the service-connected left upper extremity peripheral neuropathy is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Earlier effective date earlier for award of service connection for ED In a February 2018 rating decision, the AOJ in part granted service connection for hypertension, nephropathy and erectile dysfunction effective January 16, 2014. In April 2018, the Veteran filed a timely notice of disagreement to the effective dates of all three disabilities. In August 2020, the AOJ issued a statement of the case but left out the issue of the effective date for erectile dysfunction. Thus, the Board is required to remand the issue of entitlement to an effective date earlier than January 16, 2014 for the award of service connection for erectile dysfunction for issuance of a statement of the case. Service connection for sleep apnea In February 2018, the Veteran filed a claim for service connection for sleep apnea on a direct service incurrence basis. In an accompanying statement, he stated that while he was not diagnosed with sleep apnea until the 1980s, he has had sleeping problems, such as waking up gasping for breath, since 1972 during service. In a February 2018 statement, his wife stated that she has been married to the Veteran since 1965 and while he was not diagnosed with sleep apnea until the 1980s, he has had problems breathing during sleep long before then. An October 2017 VA examination report reflects the examiner’s opinion that the Veteran’s sleep apnea was not was caused or aggravated by his service-connected diabetes mellitus type II. However, while the record indicates that the Veteran’s sleep apnea may have had its onset during active service, an opinion on the matter has not been obtained. Thus, the AOJ should obtain an addendum opinion. An initial rating greater than 20 percent for diabetes mellitus type II with ED At an October 2017 VA examination, the Veteran indicated that his diabetes only requires an oral hypoglycemic agent and a restricted diet. The examiner indicated that the Veteran does not require the regulation of activities as part of the medical management of his diabetes. The examiner also indicated that the diabetes impacts the Veteran’s ability to work but did not provide any details or examples as to how. An April 2020 private medical record shows that his diabetes now requires insulin. While private medical records dated from 2017 and earlier indicate that the Veteran did not require the regulation of activities, there is no recent evidence as to whether he does or does not require the regulation of activities. Given the above indicating that the Veteran’s diabetes may have worsened since the October 2017 examination and the lack of evidence on functional impairment and any current requirement of regulation of activities, the AOJ should provide the Veteran with an examination to determine the current severity of his diabetes. Accordingly, these matters are REMANDED for the following action: 1. Issue a statement of the case on the issue of an effective date earlier than January 16, 2014 for the award of service connection for erectile dysfunction. 2. Obtain an addendum medical opinion on the etiology of the Veteran’s sleep apnea. The examiner should review the claims file and note that review in the report. The examiner should then opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset during active service or is otherwise causally related to such service. In answering this question, the examiner should discuss: (a.) service treatment records and VA medical records, including the prior October 2017 VA examination report and (b.) the February 2018 statements made by the Veteran and his wife regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 3. Also, provide the Veteran with an appropriate examination to determine the severity of his diabetes mellitus type II. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.