Citation Nr: 21015490 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-23 051 DATE: March 17, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for erectile dysfunction (ED), secondary to diabetes mellitus, is reopened. Entitlement to service connection for ED, secondary to diabetes mellitus, is granted. Entitlement to service connection for other specified trauma and stressor-related disorder is granted. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for hypertension, to include as due to or aggravated by service-connected disabilities, to include as due to exposure to herbicide agents, is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate noncompensable rating for left eye diabetic retinopathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 40 percent rating for right upper extremity all radicular peripheral neuropathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 30 percent rating for left upper extremity all radicular peripheral neuropathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 10 percent rating for right lower extremity femoral peripheral neuropathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 10 percent rating for left lower extremity femoral peripheral neuropathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of an increased 20 percent rating for right lower extremity sciatic peripheral neuropathy is remanded. Entitlement to an effective date prior to August 8, 2016, for the grant of an increased 20 percent rating for left lower extremity sciatic peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a compensable rating for chronic renal failure is remanded. Entitlement to a separate compensable rating for left eye diabetic retinopathy is remanded. Entitlement to an initial rating in excess of 40 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 30 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity (femoral) peripheral neuropathy, prior to January 13, 2020, is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity (femoral) peripheral neuropathy, prior to January 13, 2020, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity (femoral) peripheral neuropathy, from January 13, 2020, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity (femoral) peripheral neuropathy, from January 13, 2020, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity (sciatic) peripheral neuropathy, prior to January 13, 2020, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity (sciatic) peripheral neuropathy, prior to January 13, 2020, is remanded. Entitlement to a rating in excess of 40 percent for right lower extremity (sciatic) peripheral neuropathy, from January 13, 2020, is remanded. Entitlement to a rating in excess of 40 percent for left lower extremity (sciatic) peripheral neuropathy, from January 13, 2020, is remanded. FINDINGS OF FACT 1. In a June 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for ED. The Veteran submitted a timely notice of disagreement (NOD). A Statement of the Case (SOC) was issued in October 2014. The Veteran did not submit a timely substantive appeal. 2. Evidence associated with the record since the October 2014 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for ED. 3. Resolving reasonably doubt in the Veteran’s favor, his ED is caused by his service-connected diabetes mellitus. 4. The Veteran’s other specified trauma and stressor-related disorder is due to his in-service stressors while stationed in the Republic of Vietnam. 5. The preponderance of the evidence is against find that the Veteran’s tinnitus began during or is otherwise related to his military service. The Veteran’s tinnitus is due to his hearing loss. The Veteran is not service-connected for hearing loss. 6. The preponderance of the evidence is against finding that the Veteran’s OSA began during or is otherwise related to his military service. 7. From August 8, 2016, the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for erectile dysfunction is reopened. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2020). 2. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for other specified trauma and stressor-related disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for OSA have not been met. 6. The criteria for TDIU from August 8, 2016 have been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.10, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1962 to September 1964. His personnel records show that he served in the Republic of Vietnam from October 1963 to September 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2012 (hypertension) and December 2016 (remaining) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A June 2012 rating decision denied entitlement to service connection for ED and hypertension. In a July 2012 statement, the Veteran argued he was entitled to service connection for hypertension as it was aggravated by his service-connected diabetes mellitus. This statement, which was received prior to March 2015, should have been taken as an informal NOD. The Veteran’s hypertension claim was docketed to the Board as a claim to reopen (new and material evidence claim). However, given the July 2012, the Board finds that the Veteran’s claim of entitlement to service connection for hypertension has remained on appeal from the 2012 decision. The Board notes that the April 2017 NOD included requests for earlier effective dates for the Veteran’s noncompensable rating for renal insufficiency and 20 percent rating for diabetes. An October 2014 rating decision granted entitlement to service connection for renal insufficiency, with an initial noncompensable rating. A June 2012 rating decision granted entitlement to service connection for diabetes, with an initial 20 percent rating. The December 2016 rating decision on appeal continued the noncompensable and 20 percent ratings. As such, the earlier effective date claims for these issues were “free-standing” earlier effective date claims. The United States Court of Appeals for Veterans Claims (CAVC) has held that after a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). “Free-standing” earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. CAVC therefore held that VA has no authority to adjudicate a “free-standing” earlier effective date claim in an attempt to overcome the finality of a prior decision. Id. at 299. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran and his attorney expressly raised the issue of entitlement to TDIU in 2019/2020 and have submitted a TDIU claim form and private opinion. New and Material Evidence 1. New and material evidence having been received, the claim of entitlement to service connection for erectile dysfunction (ED), secondary to diabetes mellitus, is reopened. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its ratings decision.” Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). In June 2012, the Veteran’s claim of entitlement to service connection for ED was denied. The Veteran filed a timely NOD, and a SOC was issued in October 2014. The Veteran did not perfect an appeal as to the October 2014 decision, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). At the time of the October 2014 SOC, the evidence of record included private Kaiser Permanent records, VA treatment records, a February 2012 VA examination, an October 2014 medical opinion, and a July 2013 diabetes disability benefits questionnaire (DBQ). Evidence added to the claims file since the October 2014 SOC included ongoing VA treatment records, an October 2016 diabetes examination, an October 2016 ED examination, and a February 2020 diabetes examination. Having carefully reviewed the record, the Board finds that new and material has been submitted to reopen the previously denied claim for service connection for ED. The evidence shows that he has current ED. He argued that his “pre-diabetes” developed prior to his ED, and that his diabetes aggravated his ED. The record contains conflicting medical opinions. Viewing the recent evidentiary submissions in a light most favorable to the Veteran, the Board finds that the evidence submitted since October 2014 is not cumulative or redundant, and relates to an unestablished fact necessary to reopen the claim. Therefore, as new and material evidence to reopen the previously disallowed claim has been submitted, the petition to reopen is granted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for ED, secondary to diabetes mellitus, is granted. The Veteran argues that his ED is caused or aggravated by his service-connected diabetes mellitus. A Kaiser Permanente record from June 15, 2000 included the Veteran’s report of impotence, and his request to try Viagra. This is the earliest post-service treatment record available. On April 1, 2002, a urology consultation for chronic progressive ED included his report of initial difficulty for 10 years (1992), with gradual progression. He noted that Viagra no longer worked. Testosterone injections did not have an impact. At that time his hypertension was adequately controlled. The urologist noted that the Veteran’s glucose was “borderline” in June 2000. The urologist diagnosed chronic ED and planned to retest the Veteran’s glucose for diabetes. A November 21, 2003 urology consultation included the Veteran’s report of ED for a “few years.” A March 2005 VA record noted organic ED on both a “vasculogenic and neurogenic basis.” A March 2007 treatment record included the Veteran’s report of diabetes for more than 10 years (~1997). A May 2009 record noted the Veteran had a history of diabetes for 11 years (~1998). A February 2012 VA examination included the examiner’s finding that the Veteran had ED since 1992. The examiner noted that his “ED was a complaint during his period of impaired fasting glucose.” In the ED section, regarding etiology of the condition, the examiner selected that the Veteran’s ED was due to a combination of aging, hypertensive vascular damage, and impaired fasting glucose. In the remarks section, the examiner noted that the Veteran’s ED preceded his formal diagnosis of diabetes, and therefore his diabetes did not cause his ED. However, it is “known that the adverse effects on neurovascular structures needed for erection begin during the period of impaired fasting glucose.” A July 2013 diabetes DBQ included that ED was a condition at least as likely as not due to his diabetes mellitus. An October 2014 VA ED examination included the examiner’s recitation of several of the Kaiser Permanente records regarding the Veteran’s onset of ED and ongoing treatment. The examiner opined that the Veteran’s ED was “not at least as likely as not” (negative) due to or aggravated by his diabetes. The examiner noted that the Veteran’s ED was not responsive to a variety of medication trials prior to the onset of his diabetes, and also, was gradually progressive over a decade prior to onset of diabetes. “ED is thus more likely than not due to his hypertension and low testosterone.” His progression was noted to be consistent with that expected from hypertension. The “timing of such progression did not indicate likely contribution from new onset diabetes in 2003.” An October 2016 ED examination included that the Veteran was diagnosed with ED in 2000. He reported that he had “pre-diabetes” when his ED was diagnosed, and that it had been present since 1997. Regarding the etiology of his ED, the examiner wrote that although the Veteran “asserted that his diabetes aggravated his ED, a review of the record did not show evidence to prove that assertion.” The examiner noted that the “etiology [of his ED was] not definitively clear, but [his ED was] shown to have pre-existed diabetes for years.” Turning to the nexus opinions of record, the Board notes that the record currently contains conflicting medical opinions. Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that CAVC has stressed that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). CAVC, in Nieves, noted that when evaluating the probative value of a medical opinion, the examiner’s review of records from claims file, while important, is not dispositive absent review and consideration of most relevant case facts. Here, the examiners all had access to the private and VA records for review, interviewed the Veteran, and gave rationales for their opinions. The exact onset date of the Veteran’s ED is not known, and the record contains various years of impotence. The earliest record of a complaint of impotence was in June 2000. The same Kaiser Permanente record with a complaint of ED included a finding of “pre-diabetes”/impaired glucose. Initially some ED treatments worked, but not for long. The initial urologist investigating the Veteran’s ED focused on his impaired glucose, and sought to retest him for diabetes. He was diagnosed with diabetes shortly thereafter. Given the above, and that the record contains a positive nexus opinion, the Board will resolve reasonable doubt in the Veteran’s favor, and finds that entitlement to service connection for ED, as due to service-connected diabetes, is warranted. 3. Entitlement to other specified trauma and stressor-related disorder is granted. In August 2020, the Veteran submitted stressor statements in support of his PTSD claim. He noted that the Vietcong blew up the Saigon movie theater while he was in Saigon, and that this occurred on a day where he had been at the theater for a first showing, and it was destroyed on the second showing. He also noted that in November 1963 the government in Vietnam was overthrown and President Diem was killed. He was stationed at HSAS US Naval Headquarters Support Group in Saigon at the time. He was “almost killed that day. Life in a foreign country with little communication to the states [was] very scary.” In an August 2020 letter, the Veteran provided details of specific incidents of his service in Vietnam that he argued resulted in his mental health condition. The first incident he described occurred in Saigon after the streets were closed at night when a Vietnamese troop pulled a gun on the Veteran prior to realizing he was an American soldier. He stated he began having nightmares and trouble sleeping after that. He noted that he could have easily died, and he questioned why the Vietnamese soldier paused long enough to figure out who the Veteran (and his friend) were before firing. The second incident he described was of witnessing the immediate aftermath of a suicide of a serviceman. The third incident he described was the Saigon Movie Theater being blown up on the one day he chose to go to the earlier showing, when he normally went to the second showing. He also described his psychiatric symptoms, including anger, isolation, being unable to feel attached to others, avoidance of media that reminds him of Vietnam, nightmares, intrusive thoughts, and mood swings. He wrote that he had “not been the same since these incidents in service.” A January 2020 VA posttraumatic stress disorder (PTSD) examination included a diagnosis of other specified trauma and stressor-related disorder. “While the Veteran does not meet the criteria for PTSD, he does endorse some trauma-related symptoms…so the above diagnosis is rendered.” He reported the stressors of having a gun pointed at him in the street in Saigon. He also reported going to investigate “what was happening in Saigon from the rooftop and right when he arrived…a bullet went right by his head.” He also reported witnessing the aftermath of a suicide, and the Saigon movie theater being blown up. The examiner provided a positive nexus opinion finding that the Veteran had a diagnosis of other specified trauma and stressor related disorder related to the stressors experienced while deployed with the military in Saigon. He did not meet the criteria for a diagnosis of PTSD. His stressors were conceded based on the dates and location of his deployment in Saigon. The examiner noted the 2016 examiner did not diagnose a psychiatric disorder even though the Veteran reported PTSD-type symptoms. After citing the Veteran’s VA treatment records from 2017 to 2019, the examiner noted that the Veteran’s medical records supported his current “other specified trauma” disorder had “remained present.” “Taken together, all of the above provides evidence that the Veteran’s claimed PTSD was incurred in or caused by the claimed in-service stressors (exposure to stressors while serving in Saigon).” The Veteran’s personnel records show that he served in Vietnam for almost a year between 1963 and 1964. The Veteran’s reported stressors are consistent with his service in Vietnam during that period. The January 2020 examiner provided a positive nexus opinion between the Veteran’s in-service stressors and a diagnosis of “other specified trauma and stressor-related disorder.” As such, entitlement to service connection for other specified trauma and stressor-related disorder is warranted. 4. Entitlement to service connection for tinnitus is denied. The Veteran is seeking entitlement to service connection for tinnitus. The Veteran’s attorney did not submit argument on behalf of this claim in the August 2020 Brief. Initially, the Board notes that the Veteran is not service-connected for bilateral hearing loss, and he does not have a claim for hearing loss pending before VA. An August 19, 2016 VA audiology record included that he was being seen primarily for tinnitus. He reported “long standing ‘water-running’ tinnitus” that had worsened in the past year. He stated that he was not “particularly bothered” by the tinnitus, but wanted to know the cause of it. He reported military noise exposure of 5” gun mount, and qualifying as a right-handed shot without hearing protection. Occupational noise exposure included “very limited remodeling work without hearing protection.” Recreational noise included exposure to guns while hunting (right-handed shot) and use of power tools, without hearing protection. The Board notes that the Veteran has reported working in general contracting and painting from 1997 to 2015. An otoscopy showed ear canals had a significant wax buildup, “cerumen impaction in the past and was familiar with process of using drops.” A January 2020 VA examination included the Veteran’s report of tinnitus that he had first noticed in 2010. His noise exposure in service was listed as: exposure to 5” gun without hearing protection, exposure to artillery, and small weapons without hearing protection. Recreational noise exposure was hunting, power tools, woodworking, motor boating, lawn mowers and chainsaws. His MOS in service was as a store clerk, which had a low probability of exposure to hazardous noise. The examiner provided a negative nexus opinion, noting the Veteran’s low probability of exposure to hazardous noise from his MOS and that he first noticed tinnitus 46 years after separation from service. The examiner opined that the Veteran’s tinnitus was likely due to his hearing loss, which was likely due to post-service noise exposure and old age. Although the Veteran served in Vietnam, he has not described any specific hazardous noise exposure while serving there, to include any exposure to explosions or artillery wherein tinnitus began. Since his MOS has a low probability of exposure to hazardous noise, exposure is not conceded (and in-service injury is not conceded). As the Veteran did not have hazardous noise exposure in service, did not have tinnitus onset until 2010, and the nexus opinion links his tinnitus to his hearing loss (where hearing loss is not service-connected), entitlement to service connection to tinnitus is not warranted. 5. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. The Veteran has filed a claim of entitlement to service connection for OSA. The record does not contain any argument in support of this claim. The Veteran’s attorney submitted a brief in August 2020, but did not address this issue. Service treatment records did not include any complaints related to sleep or breathing, or a diagnosis of OSA. The Kaiser Permanente records from October 2000 showed that the Veteran had a sleep study in 1992, which showed severe OSA. An August 2016 VA treatment record included that the Veteran was noted to have used a CPAP for 23 years. As the Veteran and his attorney have not provided any arguments or theories of entitlement regarding his OSA claim, the medical records have not indicated his OSA was due to his service, and he was diagnosed with OSA almost 30 years after discharge from service, the Board finds that the preponderance of the evidence is against entitlement to service connection for OSA. TDIU 6. Entitlement to total disability based on individual unemployability (TDIU) is granted from August 8, 2016. The Veteran argues that he is entitled to TDIU as a result of his service-connected disabilities. Specifically, that the Veteran’s peripheral neuropathy has limited his ability to perform his prior occupation. Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16 (b). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16(a). The Veteran filed the increased rating claims on appeal on August 8, 2016. He has a current combined rating of 90 percent for the period from August 8, 2016. The majority of the Veteran’s service-connected disabilities stem from his diabetes mellitus. As such, he meets the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) for the period on appeal. His service-connected disabilities included: peripheral neuropathy of the upper and lower extremities, diabetes mellitus with retinopathy, and chronic renal insufficiency. In December 2019, private physician Dr. M.B. reviewed the Veteran’s record and provided an opinion on the functional impact of the Veteran’s disabilities on his employability. She cited an October 2016 examination report of the Veteran’s ongoing issues with lethargy, weakness, and limitation of exertion due to his renal dysfunction. His 2016 examinations also included his concerns due to the tingling in his hands and feet. The examiner noted that the Veteran would need a job that made allowances for him to check his blood sugars and then eat or utilize insulin as needed. The examiner also noted the Veteran would be unable to do work requiring prolonged walking, standing, work at unprotected heights, work requiring functional balance, or work with heavy or repetitive use of his hands. The Veteran informed Dr. M.B. that he previously worked as a general contractor, but mainly did painting from 1997 to 2015. He stated he stopped working because he was taking breaks every 10 minutes. He was unable to stand for longer than 10 minutes at a time due to his neuropathy and fatigue from renal insufficiency. He was unable to climb ladders because he could not feel the rungs due to numbness in his feet. He was also unable to hold brushes or do repetitive hand work for long periods of time due to the numbness in his upper extremities. He stated that writing was difficult for him and he tried to avoid it. Dr. M.B. noted that, “in general, [the Veteran] is weak and tired during the day because of his diabetes and renal problems.” The Veteran described difficulty feeling the pedals in his car and had run into someone at a fast food drive through “a few years ago” because he thought he had the brake on but did not. Dr. M.B. noted he would be “unable to maintain adequate focus to learn new skills, remain on task for more than a few minutes, or work uninterrupted. He would not be a productive employee in any work setting.” Based on her review of his record, and interview of the Veteran, Dr. M.B. found that the Veteran’s service-connected disabilities would more likely than not prevent him from maintaining substantially gainful employment. She specified that he would be unable to maintain substantially gainful employment due to his upper and lower extremity peripheral neuropathies, diabetes, and renal insufficiency “since at least August 8, 2016, the date of his claim.” A January 2020 VA psychiatric examination included the Veteran’s report of working for 35 years as a “mainframe computer technician.” Thereafter, he worked as a general contractor from 1997 until “3-4 years prior.” He stated he retired due to physical limitations. On his August 2020 TDIU claim form, the Veteran wrote that he last worked full-time on June 1, 2015. He worked as a “self-employed general contractor” from 1997 to 2015. He had two years of college education (paperwork does not indicate if a degree was earned). He had worked as a “computer technician” until 1996. In August 2020, the Veteran submitted a statement that his neuropathy rendered him “unable to work.” He was no longer able to work as a painter because he was no longer able to climb ladders due to his neuropathy. Treatment records indicate that the Veteran continues part-time, seasonal work portraying Santa Claus. This is marginal work, as the Veteran only works 10 hours a week for a short period of the year. The Veteran meets the schedular criteria for entitlement to TDIU from August 8, 2016. The record contains a medical opinion that the Veteran’s service-connected disabilities result in functional impairment that would render him unable to obtain and maintain substantially gainful employment. As such, the Board finds that entitlement to TDIU is warranted from August 8, 2016. The Board notes that the Veteran’s earlier effective date claims are being remanded for SSA records in case the records sought on remand show an increase in disability within the one-year period prior to his claim. Although the Board is awarding TDIU from August 8, 2016, this does not limit the Veteran from receiving TDIU from an earlier date if the increased ratings on appeal are awarded an earlier effective date. Rice allows for VA to review any new period that an increased rating claim is on appeal for entitlement to TDIU. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to or aggravated by service-connected disabilities, to include as due to exposure to herbicide agents, is remanded. The Veteran has argued that his hypertension has been aggravated by his service connected diabetes, or that his hypertension is due to his exposure to herbicide agents in Vietnam. A February 2012 VA hypertension examination included that the Veteran’s hypertension was diagnosed in June 2000. As noted above, the Veteran was shown to have “pre-diabetes” in June 2000. The examiner provided the opinion that the Veteran’s hypertension was not caused by his diabetes because his hypertension preceded his diabetes. The examiner noted that there was no evidence that his diabetes aggravated his hypertension because he had not developed diabetic nephropathy. “No current evidence exists to support a connection between hypertension and Agent Orange.” A July 2013 diabetes DBQ included the examiner’s finding that the Veteran’s hypertension was due to his diabetes. A November 2016 VA examination opinion included that his hypertension predated his diagnosis of diabetes. The examiner noted a prior negative aggravation opinion based on the absence of nephropathy. However, the Veteran is now service-connected for chronic renal insufficiency aggravated by his diabetes. The examiner opined that his hypertension was not aggravated by his diabetes as his hypertension was now better controlled than “previously and even before the diagnosis of diabetic nephropathy.” The examiner found that there was “no obvious evidence that his blood pressure was aggravated beyond its natural progression.” Additionally, although previously the absence of nephropathy was used as a rationale against aggravation, in this decision, the examiner noted that “the mere presence of diabetic nephropathy does not always translate into hypertension aggravation, there has to be evidence of uncontrolled hypertension, increase in anti-hypertensive medication, and still blood pressure in the unacceptable range.” The Board finds that the opinions do not include adequate rationales. The Veteran’s claim of entitlement to service connection for hypertension as due to herbicide exposure was not adequate addressed. Additionally, the examiners should address when the Veteran’s diabetes was present given that the rationales are based on the date of onset/diagnosis. The Kaiser Permanente records from June 2000 indicated impaired glucose/ “pre-diabetes.” 2. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate noncompensable rating for left eye diabetic retinopathy is remanded. 3. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 40 percent rating for right upper extremity all radicular peripheral neuropathy is remanded. 4. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 30 percent rating for left upper extremity all radicular peripheral neuropathy is remanded. 5. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 10 percent rating for right lower extremity femoral peripheral neuropathy is remanded. 6. Entitlement to an effective date prior to August 8, 2016, for the grant of a separate 10 percent rating for left lower extremity femoral peripheral neuropathy is remanded. 7. Entitlement to an effective date prior to August 8, 2016, for the grant of an increased 20 percent rating for right lower extremity sciatic peripheral neuropathy is remanded. 8. Entitlement to an effective date prior to August 8, 2016, for the grant of an increased 20 percent rating for left lower extremity sciatic peripheral neuropathy is remanded. The record indicates that the Veteran may be receiving Social Security Administration (SSA) disability benefits. To the extent that these records may show an increase in disability within the one-year period prior to filing his claim, the earlier effective date claims must be remanded to attempt to obtain SSA disability records. 9. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. The record contains conflicting examination reports regarding whether the Veteran’s diabetes mellitus required regulation of activities. On remand, an addendum opinion which addresses whether the Veteran’s diabetes mellitus required the regulation of activities for medical management at any time during the period on appeal. 10. Entitlement to a compensable rating for chronic renal failure is remanded. In an August 2020 brief, the Veteran’s attorney has argued that the Veteran’s renal failure warrants an increased rating that does not include reduction of a pre-existing 80 percent disability because the record does not include a baseline finding of renal impairment prior to aggravation. On remand, the examiner should address if there is a record which shows a baseline level of severity of renal insufficiency prior to aggravation, and if so, to cite the record. 11. Entitlement to a separate compensable rating for left eye diabetic retinopathy is remanded. 12. Entitlement to an initial rating in excess of 40 percent for right upper extremity peripheral neuropathy is remanded. 13. Entitlement to an initial rating in excess of 30 percent for left upper extremity peripheral neuropathy is remanded. The Veteran’s claim for a compensable left eye retinopathy, and increased upper extremity peripheral neuropathy rating claims must be remanded to attempt to obtain SSA records. 14. Entitlement to an initial rating in excess of 10 percent for right lower extremity (femoral) peripheral neuropathy, prior to January 13, 2020, is remanded. 15. Entitlement to an initial rating in excess of 10 percent for left lower extremity (femoral) peripheral neuropathy, prior to January 13, 2020, is remanded. 16. Entitlement to a rating in excess of 20 percent for right lower extremity (femoral) peripheral neuropathy, from January 13, 2020, is remanded. 17. Entitlement to a rating in excess of 20 percent for left lower extremity (femoral) peripheral neuropathy, from January 13, 2020, is remanded. 18. Entitlement to a rating in excess of 20 percent for right lower extremity (sciatic) peripheral neuropathy, prior to January 13, 2020, is remanded. 19. Entitlement to a rating in excess of 20 percent for left lower extremity (sciatic) peripheral neuropathy, prior to January 13, 2020, is remanded. 20. Entitlement to a rating in excess of 40 percent for right lower extremity (sciatic) peripheral neuropathy, from January 13, 2020, is remanded. 21. Entitlement to a rating in excess of 40 percent for left lower extremity (sciatic) peripheral neuropathy, from January 13, 2020, is remanded. In addition to obtaining the SSA records, the Board finds that remand of the lower extremity peripheral neuropathy ratings is warranted for an addendum opinion. The Veteran’s is currently service-connected for both femoral and sciatic nerve impairment due to peripheral neuropathy. A review of the record shows that in April 2013, the Veteran complained of low back pain with radiation of burning pain down his right leg. In August 2013 the Veteran had an EMG due to right lower back pain that radiated to his right leg. The EMG was abnormal, and showed right lumbosacral radiculopathy affecting L5 or S1. On remand, an addendum opinion should be sought regarding whether the examiner is able to differentiate which symptoms were due to peripheral neuropathy or radiculopathy. The matters are REMANDED for the following action: 1. Obtain SSA disability records for the Veteran, including any medical evidence used to determine his disability status. 2. Return the claims file to the 2016 hypertension examiner, if available, for addendum opinions. (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s hypertension began during or is otherwise due to service? (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s hypertension was due to his exposure to herbicide agents? (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s hypertension has been aggravated by his service-connected diabetes? i. The examiner should address the date of onset of the Veteran’s diabetes, to include the impaired glucose noted in June 2000. ii. If the examiner finds that the Veteran’s hypertension has been aggravated, then the examiner should cite a record showing the baseline severity of the hypertension prior to aggravation. iii. The examiner should address whether the Veteran’s renal condition/nephropathy shows his diabetes has impacted his hypertension. A complete rationale must accompany each opinion expressed. 3. Return the claims file to the 2020 VA diabetes examiner, if available, for an addendum opinion. The July 2013 diabetes DBQ includes the selection that regulation of activities was required for the medical management of his diabetes. The 2016 and 2020 VA examinations both included the selection that regulation of activities was not required. After a review of the record, the examiner should address whether regulation of activities for the medical management of diabetes was required at any time during the period on appeal (from August 8, 2015 to the present). 4. Return the claims file to the 2020 examiner, if available, for an addendum opinion. The Veteran’s renal insufficiency has been service-connected as aggravated by his service-connected diabetes. Please cite to a medical record which shows a baseline severity of renal insufficiency prior to aggravation. 5. Return to the 2020 peripheral nerve examiner, if available, for an addendum opinion. After a review of the record, including the 2013 EMG and assessment of lumbar radiculopathy, the examiner should address whether it is possible to differentiate which symptoms are due to the Veteran’s peripheral neuropathy v. his lumbar radiculopathy. 6. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.