Citation Nr: 21014603 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-10 272 DATE: March 15, 2021 ORDER Service connection for erectile dysfunction (ED) is granted. An initial higher rating in excess of 50 percent for sleep apnea is denied. An earlier effective date prior May 21, 2015, for the award of service connection for sleep apnea is denied. An earlier effective date prior to July 12, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. An earlier effective date prior to March 10, 2014, for the award of service connection for fibromyalgia is denied. An earlier effective date prior to January 21, 2010, for the award of service connection for left upper extremity peripheral neuropathy is denied. An earlier effective date prior to January 21, 2010, for the award of service connection for right upper extremity peripheral neuropathy is denied. An earlier effective date prior to October 16, 2009, for the award of service connection for left lower extremity peripheral neuropathy is denied. An earlier effective date prior to October 16, 2009, for the award of service connection for right lower extremity peripheral neuropathy is denied. REMANDED Service connection for hypertension. Service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected diabetes mellitus type II or PTSD. An initial higher rating in excess of 10 percent for fibromyalgia. An initial higher rating in excess of 10 percent for left lower extremity peripheral neuropathy. An initial higher rating in excess of 10 percent for right lower extremity peripheral neuropathy. An initial higher rating in excess of 20 percent for left upper extremity peripheral neuropathy. An initial higher rating in excess of 20 percent for right upper extremity peripheral neuropathy. A total disability rating based on individual unemployability (TDIU) prior to May 21, 2015. Entitlement to Basic eligibility to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 U.S.C. prior to May 21, 2015.   FINDINGS OF FACT 1. The Veteran’s ED is secondary to a service-connected disability. 2. Throughout the appeal period, the Veteran’s sleep apnea has not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or; requires tracheostomy. 3. The claim for service connection for sleep apnea was initially filed on May 21, 2015. There is no earlier claim of service connection for sleep apnea prior to that date. 4. The claim of service connection for PTSD was initially received on July 12, 2010. There is no earlier claim of service connection for PTSD prior to that date. 5. The claim for service connection for fibromyalgia was initially received on March 10, 2014. There is no earlier claim of service connection for fibromyalgia prior to that date. 6. The claim for service connection for peripheral neuropathy of the upper extremities was initially received on January 21, 2010. There is no earlier claim of service connection for peripheral neuropathy of the upper extremities prior to that date. 7. The claim for service connection for peripheral neuropathy of the lower extremities was initially received on October 16, 2009. There is no earlier claim of service connection for peripheral neuropathy of the lower extremities prior to that date. CONCLUSIONS OF LAW 1. The criteria for service connection for ED secondary to a service-connected disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial higher rating in excess of 50 percent for sleep apnea are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6847. 3. The criteria for an earlier effective date prior May 21, 2015, for the award of service connection for sleep apnea are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an earlier effective date prior to July 12, 2010, for the award of service connection for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an earlier effective date prior to March 10, 2014, for the award of service connection for fibromyalgia are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an earlier effective date prior to January 21, 2010, for the award of service connection for peripheral neuropathy of the left and right upper extremities are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an earlier effective date prior to October 16, 2009, for the award of service connection for peripheral neuropathy of the left and right lower extremities are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. The case is on appeal from March 2011, May 2014, June 2015, and July 2018 rating decisions. The case was most recently before the Board in November 2019. At that time, the Board denied the claim of service connection for heart disease and remanded the issues of service connection for GERD, hypertension, and ED for further development and adjudication. The Board also remanded the claims for an initial rating in excess 50 percent for sleep apnea, in excess of 10 percent for fibromyalgia, in excess of 20 percent for peripheral neuropathy of the upper extremities, and in excess of 10 percent for peripheral neuropathy of the lower extremities, and the claims for earlier effective dates for the awards of service connection for peripheral neuropathy of the upper and lower extremities, sleep apnea, PTSD, fibromyalgia, and DEA benefits for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38C.F.R. §19.9(c). In April 2020 the RO issued an SOC, a and the Veteran filed a VA Form 9 in May 2020. Thus, the issues are ready for appellate review. In a September 2020 brief, the Veteran’s attorney indicated that the service-connected disabilities, to include his bilateral peripheral neuropathy of the lower extremities, have precluded him from following or securing substantially gainful employment. The attorney argued that, therefore, a TDIU prior to May 21, 2015, is warranted. During the pendency of his appeal the Veteran has claimed, in pertinent part, that his peripheral neuropathy of the lower extremities has contributed to his inability to work. See also September 2020 VA Form 21-8940. The Veteran has not been an awarded a TDIU since May 21, 2015. However, he has been in receipt of a 100 percent schedular rating effective from that date based on the overall combined rating of his service-connected disabilities. In light of the contentions offered, the Board finds that the issue of a TDIU prior to May 21, 2015, is raised by the record and is part and parcel of the increased rating claims on appeal, including the October 16, 2009 original claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper v. Wilkie, 30 Vet. App. 356, 362 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection 1. Service connection for ED Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Here, there is no material dispute that the Veteran has erectile dysfunction. Moreover, he is currently service-connected for PTSD. According to a January 2014 VA examination, the Veteran’s ED was due to medications for blood pressure, gabapentin, amitriptyline, obesity, and alcohol history. The Board observed that his VA medical records show that he was given amitriptyline for his psychiatric symptomatology. Although January 2014 VA examiner attributed his ED to a multitude of factors, most of which are not service-connected, the critical question is whether a service-connected disability contributed in any way to his ED. The relative degrees of contribution are irrelevant. See Cohen v. Brown, 10 Vet. App. 128, 141 (1997) (discussing the “eggshell plaintiff rule” in the context of VA claims). Upon review of the record, the Board finds this evidence to at least be in equipoise as to whether the Veteran’s current ED is secondary to the service-connected disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.” Increased Ratings Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Sleep apnea is evaluated under 38 C.F.R. § 4.97, DC 6847. DC 6847 provides that a noncompensable rating is assigned when there is evidence of sleep apnea which is asymptomatic, but with documented sleep disorder breathing. A 30 percent rating is assigned when there is persistent day-time hypersomnolence. A 50 percent rating is assigned when the disability requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A higher 100 percent rating for sleep apnea is only warranted when there is chronic respiratory failure with carbon dioxide retention, cor pulmonale, or when the condition requires a tracheostomy. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An initial higher rating in excess of 50 percent for OSA. The Veteran contends that his sleep apnea warrants an evaluation in excess of 50 percent. The Veteran, nor his representative, have asserted specific contentions or arguments in support of this claim. The Veteran’s sleep apnea has been evaluated as 50 percent disabling, effective March 10, 2014. Based on review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s sleep apnea does not warrant a higher 100 percent evaluation under DC 6847. There is no evidence of record showing that the Veteran has suffered respiratory failure with carbon dioxide retention, cor pulmonale or that he underwent a tracheostomy. As previously noted, the Veteran has not alleged any specific symptoms for consideration of a rating in excess of 50 percent From review of the record, it appears that the Veteran uses a CPAP machine. See June 2015 VA examination report. The June 2015 examiner acknowledged symptoms such as snoring and day-time sleepiness, symptoms which are encompassed within the currently assigned 50 percent. No additional and more debilitating symptoms were noted. A February 2020 VA treatment note reflects that the Veteran does not use his CPAP machine “because he is uncomfortable with the mask on.” While the Veteran continues to report sleep problems, his condition does not result in retention of carbon dioxide (see September 18, 2018 laboratory tests results); nor cor pulmonale or a tracheostomy. Accordingly, there is no basis upon which to award a higher 100 percent evaluation under DC 6847. Therefore, throughout the appeal period, the Veteran’s sleep apnea is no more than 50 percent disabling. In summary, the preponderance of the evidence weighs against the Veteran’s claim for an initial higher rating in excess of 50 percent initial for sleep apnea. Therefore, the benefit-of-the-doubt rule does not apply, and the initial rating claim in excess of 50 percent for sleep apnea must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Effective Dates Legal Criteria As to effective dates, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). 3. An earlier effective date prior May 21, 2015, for the award of service connection for OSA. As previously noted, the Veteran separated from active duty in August 1968. No claim of service connection for sleep apnea was received at separation or within one year from separation. On May 21, 2015, the Veteran submitted the present original claim of service connection for sleep apnea, to include as secondary to his service-connected PTSD. See May 21, 2015 VA Form 21-526EZ. As such, pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), any disability the Veteran claimed for the first time on the May 21, 2015 claim of service connection, and for which the Veteran had been found eligible for VA compensation benefits, was to be granted effective the day on which the claim was received, which in this case is May 21, 2015. As the effective date for the award of service connection for sleep apnea has already been assigned to the earliest possible date, this benefit sought has been granted in full. There is no earlier effective date that may be granted, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an effective date prior to May 21, 2015 for the award of service connection for sleep apnea is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 4. An earlier effective date prior to July 12, 2010, for PTSD. The Veteran contends that an earlier effective date prior to July 12, 2010, for the award of service connection for PSTD is warranted. The Veteran and his representative have not provided specific arguments or contentions in support of this 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. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155. Under the old regulations, “claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Service personnel records (SPRs) reflect that the Veteran separated from active duty in August 1968. No claim of service connection for PTSD, to include an acquired psychiatric disorder was received at separation or within one year from separation. On July 12, 2010, the Veteran submitted an informal claim of service connection for PTSD. See July 12, 2010 written correspondence. As such, pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), any disability the Veteran claimed for the first time on the July 12, 2010 informal claim of service connection, and for which the Veteran had been found eligible for VA compensation benefits, was to be granted effective the day on which the claim was received, which in this case is July 12, 2010. Prior to that date, no formal or informal communication was received from the Veteran expressing an intent to file a claim until his July 12, 2010 informal claim. As the effective date for the award of service connection for fibromyalgia has already been assigned to the earliest possible date, this benefit sought has been granted in full. There is no earlier effective date that may be granted, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an effective date prior to July 12, 2010 for the award of service connection for PTSD is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 5. An earlier effective date prior to March 10, 2014, for the award of service connection for fibromyalgia. 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. Prior to March 24, 2015, VA recognized formal and informal claims. Under the old regulations, “claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). As previously noted, the Veteran separated from active duty in August 1968. No claim of service connection for fibromyalgia was received at separation or within one year from separation. On March 10, 2014, the Veteran submitted the present supplemental claim of service connection for fibromyalgia, to include as secondary to his service-connected PTSD. See March 10, 2014 VA Form 21-526b. As such, pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), any disability the Veteran claimed for the first time on the March 10, 2014 supplemental claim of service connection, and for which the Veteran had been found eligible for VA compensation benefits, was to be granted effective the day on which the claim was received, which in this case is March 10, 2014. Prior to that date, no formal or informal communication was received from the Veteran or his representative expressing an intent to file a claim until his March 10, 2014 supplemental claim. As effective date for the award of service connection for fibromyalgia has already been assigned to the earliest possible date, this benefit sought has been granted in full. There is no earlier effective date that may be granted, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an effective date prior to March 10, 2014 for the award of service connection for fibromyalgia is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 6. An earlier effective date prior to January 21, 2010, for the award of service connection for peripheral neuropathy of the left upper extremity. 7. An earlier effective date prior to January 21, 2010, for the award of service connection for peripheral neuropathy of the right upper extremity. 8. An earlier effective date prior to October 16, 2009, for the award of service connection for peripheral neuropathy of the left lower extremity. 9. An earlier effective date prior to October 16, 2009, for the award of service connection for peripheral neuropathy of the right lower extremity. As previously noted, 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. Prior to March 24, 2015, VA recognized formal and informal claims. Under the old regulations, “claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). The Veteran separated from active duty in August 1968. No claim of service connection for bilateral upper or lower extremities peripheral neuropathy was received at separation or within one year from separation. With respect to the peripheral neuropathy of the lower extremities, the Veteran first expressed his intent to file a claim for these specific disabilities on October 16, 2019. See VA Form 21-4138 (the Veteran pointed out a recent diagnosis of neuropathy in both knees as a result of his diabetes mellitus). With respect to the peripheral neuropathy of the upper extremities, the Veteran first expressed his intent to file a claim for these additional disabilities on January 21, 2010. See January 21, 2010 written correspondence (the Veteran indicated that he would like to open an additional claim for bilateral peripheral neuropathy of the upper extremities as also related to his diabetes). There is no evidence indicating that prior to October 16, 2009 for the lower extremities’ peripheral neuropathy, and prior to January 21, 2010 for the upper extremities’ peripheral neuropathy, the Veteran expressed an intent to file a claim of service connection, formal or informal, for the foregoing disabilities. As such, pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), the peripheral neuropathy of the lower extremities claimed for the first time on the October 16, 2009 informal claim of service connection, and the peripheral neuropathy of the upper extremities he claimed on the January 21, 2010 informal claim, for which the Veteran had been found eligible for VA compensation benefits, were to be granted effective the day on which the claims were received respectively, which in this case is October 16, 2009 for the peripheral neuropathy of the lower extremities, and January 21, 2010 for the peripheral neuropathy of the upper extremities. As noted above, prior to those dates no formal or informal communications were received from the Veteran expressing an intent to file a claim until his October 16, 2009 informal claim for his lower extremities, and until January 21, 2010 for his upper extremities. As the effective dates for the awards of service connection for bilateral upper and lower extremities peripheral neuropathy have already been assigned to the earliest possible date respectively, the benefits sought have been granted in full. There is no earlier effective date that may be granted for any of the issues, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an effective date prior to October 16, 2009 for the award of service connection for peripheral neuropathy of the lower extremities, and prior to January 21, 2010 for the award of service connection for peripheral neuropathy of the upper extremities are not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for hypertension. In its November 2019 remand, the Board remanded the present claim for a VA medical opinion to consider the most recent NAS Institute of Medicine upgrade for hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association in Update 11 (2018). The Board notes that according to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The Veteran was afforded a VA examination in February 2020. The VA examiner indicated that the condition claimed was less likely than not incurred in or caused by the Veteran’s presumed exposure herbicides agents during service in Vietnam. She indicated that despite the 2018 NAS update moving hypertension from the category of “limited or suggestive” to the category of “sufficient” evidence of an association to exposure to herbicides, hypertension is currently not accepted as a presumptive condition related to Agent Orange exposure by the VA for ratings purposes. She further noted that the RO may choose to use this evidence as sufficient for establishing service connection. The examiner added that there are other risk factors for his hypertension such as age, obesity, physical inactivity, family history, high sodium diet, among others. The Board finds that the February 2020 VA opinion is not adequate to the extent that the VA examiner’s opinion suggests that she was essentially making a legal determination, instead of a medical one, by indicating that an opinion considering the 2018 NAS update cannot be provided as hypertension is not considered a presumptive disability due to herbicides exposure for VA rating purposes. See Sizemore v. Principi, 18 Vet. App. 264 (2004). That is a matter for determination by the Board and not a medical matter. See Mariano v. Principi, 17 Vet. App. 305, 313 (2003). The Board may not rely on such an opinion. Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019) 2. Service connection for erectile dysfunction. In its November 2019 remand, the Board noted that during a March 2011 VA examination, the VA examiner pointed out a “vascular related etiology for the Veteran’s ED, in addition to medication used for hypertension.” Thereafter, in the August 2018 VA opinion, the VA physician indicated that the Veteran’s current prescription of lisinopril as part of his treatment for hypertension is associated with an adverse reaction of erectile dysfunction and not due to his diabetes mellitus or its medication for treatment. The Board also notes that the August 2018 VA examiner indicated that there are other contributing factors to his erectile dysfunction such as his previously prescribed gabapentin, amitriptyline, the Veteran’s obesity, and prior ETOH history. To this end, VA treatment records reflect that the Veteran has been prescribed gabapentin and amitriptyline to treat, in pertinent part, his service-connected bilateral upper and lower extremities peripheral neuropathy. As to his obesity as a contributing factor, the Board notes that that the Veteran is service-connected for fibromyalgia and bilateral upper and lower extremities polyneuropathy. In a March 2014 lay statement, the Veteran asserted that he is unable to exercise for any length of time due to his uncontrolled pain due muscle and joint pain, cannot sleep well and experiences chronic fatigue which in turn render him unable to do many activities. Thereafter, in a September 2014 lay statement, the Veteran indicated that he was told by his private provider that his PTSD exacerbated his pain and rendered him unable to do other activities. Although obesity is not a condition for which service connection may be granted, obesity may qualify as an “intermediate step” between a service-connected disability and another current disability.” See VAOPGCPREC 1-2017, at 9-10 (Jan. 6, 2017); See also Garner v. Tran, U.S. App. Vet. Claims Lexis 81 (2021); Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Here, the August 2018 VA examiner considered obesity as one of the contributing factors for the Veteran’s erectile dysfunction. Also, in a September 2020 testimonial statement, the Veteran’s wife indicated her belief that the Veteran’s medication for his neuropathy caused him side effects, to include his erectile dysfunction. As the claim for hypertension is remanded for additional development and adjudication, and given the additional theories of service connection on a secondary basis set forth above, the Board finds that a remand is warranted for a VA addendum opinion to comment on the etiology and nature of the Veteran’s erectile dysfunction, to include the newly raised theories suggesting a link between his erectile dysfunction and the medications prescribed for his service-connected disabilities, or due to obesity considered as an intermediate step. 3. Service connection for GERD. In its November 2019 remand, the Board noted that, according to July 2013 and August 2018 VA examinations in connection with this claim, the VA examiners determined that the Veteran’s GERD was neither directly related to service or nor secondary to his service-connected PTSD as he had psychological symptoms likely for years without signs of subjective GERD symptoms. Despite the opinions, it was determined that a remand was warranted as the examination reports did not address the Veteran’s contention as to the possible relationship that may exist between his GERD and his service-connected diabetes mellitus type II. Pursuant to the Board’s November 2019 remand, an addendum VA opinion was given in February 2020. The opinion specifically addressed the theory of service connection on a secondary basis due to his diabetes mellitus type II. The VA examiner opined that the Veteran’s GERD is less likely than not proximately due to or the result of the Veteran’s service-connected disability as diabetes is not known in medical literature to be a risk factor for GERD or a casually related condition. However, this time the examiner indicated that there are other possible risk factors for the Veteran’s GERD, such as his obesity and certain medications he currently takes. An opinion regarding this theory was not directly addressed. Accordingly, the Board finds that another theory has been raised by the record regarding his obesity as a possible etiology of the Veteran’s GERD. The Veteran is service-connected for fibromyalgia and bilateral upper and lower extremities polyneuropathy. The Veteran has stated throughout the pendency of the appeal that he is not able to exercise for any length of time due to pain and chronic fatigue (see March 2014 lay statement); and that that his PTSD exacerbated his pain and rendered him unable to do other activities (see September 2014 lay statement). Although obesity is not a condition for which service connection may be granted, obesity may qualify as an “intermediate step” between a service-connected disability and another current disability.” See VAOPGCPREC 1-2017; see also Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81, at *16 (Vet. App. Jan. 26, 2021); Walsh v. Wilkie, No. 18-0495, 2020 U.S. App. Vet. Claims LEXIS 295, at *12 (Vet. App. Feb. 24, 2020). For the reasons set forth above, the Board finds that a new VA addendum opinion is warranted to comment and clarify the newly raised theory of obesity as an intermediate step. Further clarification is also needed as the evidence shows that he had symptoms prior to service. 4. An initial higher rating in excess of 10 percent for fibromyalgia. The Veteran contends that an initial higher rating in excess of 10 percent is warranted for his fibromyalgia. With respect to this claim, the evidence of record reflects that in a private opinion from Dr. K.L., the Veteran’s private rheumatologist indicated that the Veteran’s fibromyalgia was manifested with widespread body pain and poor sleep. See March 31, 2015 private medical opinion. The Veteran was last afforded a VA examination in April 2017. At that time, the VA examiner indicated that most of the symptoms reported as related to fibromyalgia, such as fatigue, widespread pain, poor sleep, and depression and/or anxiety were more likely related to other health issues such as musculoskeletal degenerative arthritis, sleep apnea and PTSD. VA treatment records show that the Veteran is under chiropractic treatment for fibromyalgia which appears to manifest by chronic pain in his shoulders and segmental dysfunction of the thoracic spine with hypertonic musculature. See October 5, 2020 progress notes. See also February 21, 2020 progress notes (fibromyalgia exacerbated by stress triggered by his PTSD); January 2, 2020 progress notes (the Veteran is under conservative treatment for his fibromyalgia); and November 13, 2019 progress notes (the Veteran’s attributes his fibromyalgia flares to increased stress and anxiety). Lay statements were received in September 2020. First, the Veteran’s wife indicated that his fibromyalgia caused him body pain all day long. Which in turn render him unable to do tasks at the house “as it hurts so much.” In sum, she indicated that his fibromyalgia prevented him from performing activities of daily living. In addition, Mr. A.S., a Veteran’s close friend, indicated that he had witnessed how the Veteran’s fibromyalgia symptoms, such as fatigue and pain, preclude him from stand or walk for long periods of time. The Board notes that the March 2015 private opinion, and the April 2017 VA examination were aimed toward the nexus element of a service connection claim and not necessarily commented or concentrated on the actual severity of his disability. In light of the above, the lay statements received from the Veteran’s wife and Mr. A.S. suggesting a worsening of his disability, VA treatment records and given that the Veteran was last afforded a VA examination in April 2017, the Board finds that a remand is warranted for a contemporaneous VA examination to comment on the severity of the claimed disability in accordance with the reasons set forth above. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. An initial higher rating in excess of 10 percent for left lower extremity peripheral neuropathy. 6. An initial higher rating in excess of 10 percent for right lower extremity peripheral neuropathy. 7. An initial higher rating in excess of 20 percent for left upper extremity peripheral neuropathy. 8. An initial higher rating in excess of 20 percent for right upper extremity peripheral neuropathy. In a lay statement received in September 2020, Mr. A.S., a Veteran’s friend, indicated, in pertinent part, that he had witnessed how the Veteran’s neuropathy has worsened over the years. He also stated that the Veteran had limitations with his hands and did not have full use of his arms and legs, that the Veteran was in pain constantly, had lost strength in his hands, that his arms and hands were weaker, and that the Veteran had limitations on gripping and holding things due to his neuropathy. A September 2020 lay statement from the Veteran’s wife indicates that ever since the onset of his neuropathy, she had witnessed how the Veteran experience a lot of pain in his arms. She also indicated that the condition has progressively worsened over the years to the point that his arms and hands became stiff precluding him from even holding a cup of coffee. In sum, the Veteran’s wife indicated that his upper and lower extremities peripheral neuropathy prevented the Veteran from performing most activities of daily living and have caused significant pain and progressive limitations. The Board notes that the Veteran was last afforded a VA examination connection with these claims in January 2014. A remand is warranted for a new and contemporaneous VA examination to opine on the severity of the claimed disabilities, to include a retrospective opinion as to the severity of the Veteran’s peripheral neuropathy during the pendency of the appeal. See Snuffer, 10 Vet. App. 400. 9. A TDIU prior to May 21, 2015. As previously noted, the issue of a TDIU is part and parcel of the initial higher rating claim for the Veteran’s peripheral neuropathy of the lower extremities. See Rice. In a September 2020 brief, the Veteran’s attorney indicated that the evidence of record supports a TDIU prior to May 21, 2015, since at least July 12, 2010. See brief at p.5. In his application for a TDIU, the Veteran indicated that he last worked full-time as an I.T. consultant in June 2007, and that he became too disabled to work in January 2008. In a letter dated on June 28, 2014, and submitted by the Veteran in August 2017, Mr. B.B.B., who identified himself as the Veteran’s former supervisor, indicated that the Veteran worked for him for approximately 3 years, that his responsibilities included driving a water truck to water a horse riding arena, operating a tractor in order to drag a riding arena, leading horses to turn out areas, saddling and unsaddling in training horses, bathing and grooming in training horses, and occasionally cleaning horse stalls. However, Mr. B.B.B indicated that about a year prior to that letter (i.e. June 2013), the Veteran had to stop working due to several physical and emotional issues. While the evidence reflects that the Veteran retired from his previous work as an I.T. consultant in 2007 as he appears to have reached the age for retirement (see July 2013 VA GERD examination report), the Board finds that further development with respect to this claim must be conducted, to include a Request for Employment Information in connection with the claim for a TDIU (VA Form 21-4192) from the Veteran’s last former employer. The evidence of record is not sufficient to determine the exact date the Veteran was last employed, whether his employment was full or part-time, or whether it is considered marginal employment for VA compensation purposes. As such, the claim for a TDIU is remanded for further development and adjudication in accordance with the reasons set forth above. 10. DEA benefits prior to May 21, 2015. As the pending actions by the RO with respect to the claims for a TDIU and the additional increase rating claims herein remanded may affect whether the Veteran is entitled DEA benefits prior to May 21, 2015, the Board finds that the issue is inextricably intertwined with the pending development and adjudication set forth above and, therefore, the Board must defer adjudication at this time. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue). The matters are REMANDED for the following action: 1. Obtain all information necessary to verify the Veteran’s work history during the years a TDIU is claimed, including by: (a.) Contacting the Veteran and ask that he report all income from any source, including with horses, during the years he is claiming a TDIU. (b.) If necessary, take all action needed, such as contacting the Internal Revenue Service, to verify the Veteran’s earned income during the years claimed. (c.) With the Veteran’s assistance, as needed, obtain a completed VA Form 21-4192 the Veteran’s last former employer. 2. Obtain an opinion, other than from the February 2020 Nurse Practitioner, as to whether the Veteran’s hypertension is related to his presumed exposure to herbicide agents, such as Agent Orange. In this regard, the examiner is asked to provide a medical opinion with special consideration given to the NAS Institute of Medicine 2018 update upgrading the classification of hypertension from its previous category of “limited or suggestive” evidence of an association with exposure to Agent Orange, to the category of “sufficient” evidence of an association. In answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure based on all available information even though it is not on the list of "presumptive" diseases. 3. Obtain an opinion as to the Veteran’s GERD. The examiner must address the following: (a.) Whether the GERD condition preexisting service was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (b.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. The examiner must particularly consider whether obesity was an “intermediate step” between a service-connected disability, such as the peripheral neuropathy of the bilateral lower and upper extremities or fibromyalgia, in causing or contributing to any degree to GERD. Consideration should be given to the Veteran’s statements as to his inability to exercise for any length of time due to pain and fatigue. In answering these questions, the examiner is asked to consider the statements from the Veteran and other witnesses regarding his symptoms. The examiner is asked to explain why their statements make it more or less likely that GERD was aggravated during service or is secondary to a service-connected disability, including obesity as an intermediate step. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. Schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) by an appropriate medical professional in connection with the increase rating claim for fibromyalgia. The examiner is asked to describe the current severity of the Veteran’s fibromyalgia and, to the extent possible, to provide a retrospective opinion regarding the severity of the disability beginning from March 10, 2014. If such a retrospective opinion is not possible, the examiner must explain why. 5. Schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) by an appropriate medical professional to describe the severity of the Veteran’s bilateral upper and lower extremities peripheral neuropathy. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.