Citation Nr: 21016209 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-06 795 DATE: March 22, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for left lower extremity (LLE) peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for right lower extremity (RLE) peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, type II, is reopened; to that extent only, the appeal is granted. Entitlement to service connection for LLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for RLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is granted. As severance of service connection for right upper extremity (RUE) peripheral neuropathy effective January 31, 2019 was proper, the appeal is denied. Entitlement to an initial compensable evaluation for RUE peripheral neuropathy from January 7, 2013 to January 31, 2019 is denied. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to an initial evaluation in excess of 20 percent for left upper extremity (LUE) peripheral neuropathy is remanded. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the RO denied the Veteran’s petition to reopen a claim for entitlement to service connection for LLE peripheral neuropathy; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the December 2013 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for LLE peripheral neuropathy. 3. In a December 2013 rating decision, the RO denied the Veteran’s petition to reopen a claim for entitlement to service connection for RLE peripheral neuropathy; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final. 4. The evidence received since the December 2013 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for RLE peripheral neuropathy. 5. In a June 2009 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for glaucoma; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final. 6. The evidence received since the June 2009 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an eye disability. 7. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed LLE peripheral neuropathy was caused by his in-service exposure to an herbicide agent. 8. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed RLE peripheral neuropathy was caused by his in-service exposure to an herbicide agent. 9. The evidence of record establishes that the award of service connection for RUE peripheral neuropathy was clearly and unmistakably erroneous, because the Veteran is not shown to have such disability clinically diagnosed. 10. As the grant of service connection was clearly and unmistakably erroneous, the Veteran is not entitled to an increased evaluation for RUE peripheral neuropathy from January 7, 2013 to January 31, 2019. 11. Throughout the appeal period, the Veteran’s diabetes mellitus, type II, requires an oral hypoglycemic agent, one or more daily injection of insulin and a restricted diet, but no regulation of activities. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied the petition to reopen a claim for entitlement to service connection for LLE peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for LLE peripheral neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The December 2013 rating decision that denied the petition to reopen a claim for entitlement to service connection for RLE peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence has been received to reopen a claim for entitlement to service connection for LLE peripheral neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The June 2009 rating decision that denied the claim for entitlement to service connection for glaucoma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 6. New and material evidence has been received to reopen a claim for entitlement to service connection for an eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for entitlement to service connection for LLE peripheral neuropathy, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection for RLE peripheral neuropathy, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 9. The criteria for severance of service connection for right upper extremity (RUE) peripheral neuropathy effective January 31, 2019 have been met. 38 U.S.C. §§ 1110, 5109A, 5112; 38 C.F.R. §§ 3.103, 3.105, 3.303. 10. The criteria for entitlement to an initial compensable evaluation for RUE peripheral neuropathy from January 7, 2013 to January 31, 2019 have not been met. 38 U.S.C. § 501; 38 C.F.R. § 3.400(o). 11. The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1969 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in January 2014, August 2015, and November 2018 by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2014 rating decision, the RO granted service connection for LUE peripheral neuropathy and assigned a 10 percent evaluation, effective January 7, 2013; granted service connection for RUE peripheral neuropathy and assigned a noncompensable evaluation, effective January 7, 2013; denied reopening a claim for service connection for LLE peripheral neuropathy; and denied reopening a claim for service connection for RLE peripheral neuropathy. The Veteran appealed for higher initial evaluations and service connection. In the August 2015 rating decision, the RO, in pertinent part, denied a higher than 70 percent evaluation for PTSD; denied a higher than 20 percent evaluation for diabetes mellitus, type II; denied service connection for a neck disability; denied reopening the claim for service connection for vision loss; and denied entitlement to a TDIU. The Veteran appealed for higher evaluations, service connection and a TDIU. In the November 2018 rating decision, the RO severed service connection for RUE peripheral neuropathy, effective January 31, 2019. The Veteran appealed for restoration of his award for service connection. During the pendency of the appeal, the RO issued a January 2017 rating decision granting a 20 percent evaluation for LUE peripheral neuropathy, effective January 7, 2013. The Veteran continued to appeal for a higher initial evaluation for LUE peripheral neuropathy. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). A complete transcript of the Veteran’s December 2019 Board hearing could not be produced due to an audio malfunction in the digital audio recording system. In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A complete transcript of this hearing is of record. Although the issue certified to the Board was for service connection for vision loss, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized as service connection for an eye disability to comport with the record. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.20, 19.21, 19.22, 19.52. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for LLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for RLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II In a May 2003 rating decision, the RO denied the Veteran’s original claim for entitlement to service connection for peripheral neuropathy. That decision is final. In a September 2004 rating decision, the RO denied the Veteran’s claim to reconsider that claim for entitlement to service connection for peripheral neuropathy. That decision is final. In a June 2009 rating decision, the RO denied the Veteran’s petitions to reopen claims for entitlement to service connection for LLE and RLE peripheral neuropathy. That decision is final. In a December 2013 rating decision, the RO denied the Veteran’s petitions to reopen claims for entitlement to service connection for LLE and RLE peripheral neuropathy, because the evidence showed that the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not proximately related to or the result of his diabetes mellitus, type II. That decision is final. Since the Veteran’s last prior final denial in December 2013, the record includes December 2020 Board testimony in which the Veteran testified that his doctor told him that his bilateral lower extremity peripheral neuropathy was caused by his diabetes. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claims of service connection. The December 2020 Board testimony will be presumed credible for the purpose of reopening the claims. Consequently, the claims of entitlement to service connection for LLE and RLE peripheral neuropathy are reopened. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, type II In a June 2009 rating decision, the RO denied the Veteran’s original claim for service connection for glaucoma, because there was no evidence of a clinically diagnosed eye disability. That decision is final. Since the Veteran’s last prior final denial in June 2009, the record includes 2014 VA treatment records reflecting diagnoses for presbyopia, glaucoma, dry eyes, and cataracts. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The 2014 VA treatment records will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for an eye disability is reopened. Service Connection 4. Entitlement to service connection for LLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II 5. Entitlement to service connection for RLE peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II The Veteran asserts that his bilateral lower extremity peripheral neuropathy developed during his active service while in Vietnam. Alternatively, the Veteran asserts that his bilateral lower extremity peripheral neuropathy was caused by his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e), including early-onset peripheral neuropathy, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. For early-onset peripheral neuropathy, the regulation applies where it became manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question before the Board is whether the Veteran’s bilateral lower extremity peripheral neuropathy is etiologically related to service or a service-connected disability. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral lower extremity peripheral neuropathy is warranted. The Veteran’s DD Form 214 reflects that his military occupational specialty was Teletype Repairman. He served in Vietnam from August 1970 to August 1971. He received the Bronze Star Medal. Based on the circumstances of his service, the Board finds that the Veteran was presumed to have been exposed to an herbicide agent. The Veteran’s service treatment records (STRs) do not document any findings related to any complaints, treatment, or diagnosis for any symptoms related to peripheral neuropathy in his lower extremities. The record shows that the Veteran underwent an August 2001 private electromyography (EMG) and nerve conduction studies, which revealed that he had diffuse sensory and motor polyneuropathy of the lower extremities. Now, the Board recognizes that the record includes conflicting medical opinions as to the etiology of the Veteran’s bilateral lower extremity peripheral neuropathy. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In January 2003, the Veteran underwent a VA examination. The Veteran reported that he had symptoms of a burning sensation in his feet, which began while he was serving in Vietnam. Despite a medic telling him that his symptoms were attributed to trench foot, the Veteran said that the burning in his feet was not located in the cracked open areas from the skin inflammation. Rather, the January 2003 VA examiner noted that the Veteran reportedly had a dysesthesia burning sensation in the feet themselves. The January 2003 VA examiner also documented that the Veteran’s wife confirmed the Veteran’s report of symptoms during service and since service. He currently experienced dysesthesias circumferentially in both legs below the knees with some numbness in the anterolateral right thigh. He also had painful dysesthesias in his feet. When he had to travel for work, he described how he would put his feet in the bathtub to soak his feet in warm water in an attempt to relieve the cold sensation and dysesthesias. He started seeing his neurologist in the past two years when the pain and tingling had worsened. Noting the findings of the August 2001 EMG study, the January 2003 VA examiner diagnosed the Veteran with a dramatic, rapidly progressive sensory and motor neuropathy of the bilateral lower extremities. The January 2003 VA examiner opined that since the Veteran’s symptoms began in Vietnam, at the time he had presumptive exposure to Agent Orange, it is as likely as not that his current neuropathy represents a progression from that unusual neuropathy. In making that determination, the January 2003 VA examiner relied on the findings that the Veteran’s peripheral neuropathy had been longstanding and present from the time of his service in Vietnam, that he has had to make accommodations for it over the years, and his history is consistent and verified by his wife. In November 2013, a VA examiner opined that the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not proximately related to or the result of his diabetes mellitus, type II. In making that determination, the November 2013 VA examiner relied on the findings that the Veteran’s onset of symptoms of peripheral neuropathy predated his diagnosis for diabetes, which occurred in 2001, by 37 years. While the November 2013 VA examiner’s opinion addresses causation, that opinion is inadequate, because it does not address the aggravation prong for secondary service connection. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In March 2016, after reviewing the conflicting medical evidence, the VA examiner noted that the available records were not clear that the Veteran’s peripheral neuropathy had an onset of symptoms prior to 2001. The March 2016 VA examiner also found that there was no evidence of peripheral neuropathy in service. Overall, the March 2016 VA examiner determined that given the rapidly progressive nature of the Veteran’s neuropathy, it was unlikely that his neuropathy began 30 years earlier during service. Also, the records show that the Veteran had tightly controlled diabetes, so the March 2016 VA examiner concluded that the rapid progression of the neuropathy argued against it being diabetic polyneuropathy. The Board finds that the March 2016 VA examiner’s opinion is inadequate. In finding that the Veteran’s peripheral neuropathy was not caused by his diabetes, the March 2016 VA examiner found that there was no evidence of peripheral neuropathy during service. However, the Veteran reported that he had symptoms of a burning sensation in his feet during service, which a January 2003 VA examiner found to be credible. The March 2016 VA examiner did not discuss why these reports were not consistent with symptoms of peripheral neuropathy. Instead, the March 2016 VA examiner found that the lack of medical documentation of peripheral neuropathy was sufficient evidence that no such symptoms existed during service. Given the March 2016 VA examiner’s discount of the Veteran’s lay reports of his in-service symptoms without a sufficient explanation, the Board finds that the March 2016 VA examiner’s opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the inadequate opinions provided by the November 2013 and March 2016 VA examiners, the Board finds that the January 2003 VA examiner’s opinion provides the most probative evidence concerning the etiology of the Veteran’s bilateral lower extremity peripheral neuropathy. The January 2003 VA examiner addressed the Veteran’s in-service reports of symptoms and the continuity of those symptoms since service as well as self-treatment and found that those reports were credible. The January 2003 VA examiner provided an opinion based on a consideration of the relevant evidence and a thoroughly supported rationale for the opinion. Taking into consideration the totality of the evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his bilateral lower extremity peripheral neuropathy is caused by his in-service exposure to an herbicide agent. Therefore, the Veteran’s service connection claims for LLE peripheral neuropathy and RLE peripheral neuropathy must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Severance 6. Whether the severance of service connection for RUE peripheral neuropathy effective January 31, 2019 was proper The Veteran generally asserts that he warrants restoration of his award for service connection for RUE peripheral neuropathy. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being on the Government). 38C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that clear and unmistakable error exists in the award of service connection. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at the claimant's latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38C.F.R. § 3.105(d). The RO originally granted service connection for RUE peripheral neuropathy in a January 2014 rating decision. In a November 2017 rating decision, the RO proposed to sever service connection for RUE peripheral neuropathy. The RO determined that grant of service connection was based on a November 2013 VA examination; however, that VA examination did not make a diagnosis of RUE peripheral neuropathy. Furthermore, medical opinions provided after that VA examination have confirmed that no peripheral neuropathy of the RUE was diagnosed. The Veteran did not submit additional evidence or arguments, nor did he request a predetermination hearing in response to the November 2017 proposed rating decision. In a November 2018 rating decision, the RO severed service connection for RUE peripheral neuropathy, effective January 31, 2019. First, the procedural requirements for severance were met and are not at issue. 38 C.F.R. § 3.105(d). At the November 2013 VA examination, the VA examiner conducted an objective evaluation and concluded that the Veteran had a diagnosis for left ulnar neuropathy. No diagnosis attributable to the right upper extremity was made. Rather, the VA examiner specifically found that the Veteran’s sensory examination results were normal in the right upper extremity. Subsequent VA and private treatment records document the Veteran’s complaints of numbness and tingling in his hands. However, no diagnosis for RUE peripheral neuropathy was made. Notably, a July 2015 private treatment record reflects that the Veteran had undergone an EMG study in July 2015 that showed mild left ulnar neuropathy at the elbow. No findings attributable to his RUE were noted. In a March 2016 VA opinion, the VA examiner reviewed the Veteran’s medical records and found that at the time of his November 2013 VA examination, the Veteran had subjective complaints in both upper extremities, but no findings were made in the right hand. No diagnosis of a RUE neuropathy was ever made, and there was no evidence of a RUE neuropathy on examination. However, the VA examiner found that the Veteran clearly had left ulnar neuropathy and did not find that diagnosis to be in error. The Board recognizes that the Veteran contends that he had symptoms in his RUE. However, the Veteran’s subjective complaints are not competent evidence to support a diagnosis for RUE peripheral neuropathy. Thus, the Veteran’s lay assertions do not support his claim for restoration. Based on the above evidence, the Board must conclude that the award of service connection for RUE peripheral neuropathy was clearly and unmistakably erroneous, as the grant was based on an erroneous finding that the Veteran had a RUE peripheral neuropathy diagnosis. The evidence of record does not otherwise support the grant. The clear and unmistakable error occurred, because the correct facts were not considered by the adjudicator. That error was outcome determinative and reasonable minds cannot differ as to the correct interpretation of the facts. Therefore, the severance of service connection for RUE peripheral neuropathy on the basis of clear and unmistakable error was proper, and the appeal is denied. Increased Rating 7. Entitlement to an initial compensable evaluation for RUE peripheral neuropathy from January 7, 2013 to January 31, 2019 The Veteran generally asserts that he warrants a compensable evaluation for his RUE peripheral neuropathy. However, pursuant to 38 C.F.R. § 3.400(o), a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. In this decision, the Board has upheld the severance of service connection for RUE peripheral neuropathy, effective January 1, 2019. The law clearly is dispositive as it prohibits a retroactive increase once basic entitlement has been terminated. Accordingly, the Board finds that the Veteran lacks entitlement under the law for a compensable initial evaluation for RUE peripheral neuropathy where service connection for such has been properly severed; therefore, the request for a compensable initial evaluation must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 8. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II The Veteran asserts that his diabetes mellitus, type II, is worse than his current evaluation reflects. At his December 2020 Board hearing, the Veteran testified that he took an oral medication and insulin daily for his diabetes. He did not recall that any of his treating providers told him that he could not perform certain activities because of his diabetes. He said that his physician only talked about his diet and the amount of insulin he took. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran's diabetes mellitus, type II, has been currently evaluated as 20 percent disabling, effective May 8, 2001, under 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board notes that VA amended the criteria for rating endocrine disorders effective from December 10, 2017. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after December 10, 2017. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Prior to December 10, 2017, Diagnostic Code 7913 provides a 10 percent rating when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Since December 10, 2017, Diagnostic Code 7913 provides a 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note 1 was not changed under the December 10, 2017 amendments. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). In this case, the Veteran has already been service-connected for LUE peripheral neuropathy and erectile dysfunction as secondary conditions to his diabetes mellitus, type II. The Veteran is currently appealing for a higher initial evaluation for LUE peripheral neuropathy and will be addressed in the remand portion of this decision. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s diabetes mellitus, type II, does not warrant a higher 40 percent evaluation under Diagnostic Code 7913 of either the old or amended rating criteria. In other words, the Veteran's diabetes mellitus, type II, requires a restricted diet, an oral hypoglycemic agent and at least one insulin injection per day, but does not require regulation of activities. See April 2015 VA examination. Neither the Veteran’s own lay reports nor any of his VA or private treatment records show that he avoided strenuous occupational and recreational activities because of his diabetes. Accordingly, there is no basis upon which to award a higher 40 percent initial evaluation for diabetes mellitus, type II, under Diagnostic Code 7913 of either the previous or amended rating criteria. Therefore, throughout the appeal period, the Veteran’s diabetes mellitus, type II, is no more than 20 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 20 percent evaluation claim for diabetes mellitus, type II. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Veteran contends that his current neck disability developed during active duty service. At his December 2020 Board hearing, the Veteran testified that he was assigned to the 101st Airborne and stationed in the upper landing zone at Camp Eagle in Vietnam close to the demilitarized zone. He said that during service, he repeatedly experienced hard landings from landing on a field in helicopters. He said that when he got out of the helicopter, he did not know if he would be five feet or 20 feet off the ground. He also described an incident where a grenade exploded close to him and caused his two front teeth to be “busted out” and “almost broke my nose.” He said that he was treated at a hospital in Da Nang for about four or five days, but then he was sent back into service. He said that he remembered having neck problems while serving in Vietnam. In an April 2016 VA opinion, the VA examiner opined that the Veteran’s neck disability, diagnosed as cervical spine degenerative arthritis and spinal fusion, was less likely as not incurred in or caused by his military service. In making that determination, the VA examiner found that the Veteran’s neck condition occurred many years after service. No records were found to substantiate the condition before 2011. The VA examiner concluded that the Veteran’s neck disability was most likely a natural and aging condition. The Board finds that the April 2016 VA opinion is inadequate, because it does not specifically address the Veteran’s lay assertions that his neck problems began during service. Accordingly, a remand is required to obtain a supplemental VA opinion that takes into consideration the Veteran’s specific reports of neck problems during service. 2. Entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, type II, is remanded. In an April 2019 VA opinion, the VA examiner opined that the Veteran’s glaucoma was less likely than not aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. No opinion was provided that addressed the causation prong for secondary service connection; thus, it is inadequate for adjudicative purposes. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Furthermore, the record shows that the Veteran has been diagnosed with multiple eye disabilities, including glaucoma, presbyopia, dry eyes, partial retinal detachment, nuclear sclerosis cataract, and posterior vitreal detachment. However, the record does not include any opinion that addresses the Veteran’s other diagnosed eye disabilities. Additionally, at his April 2019 VA examination, the Veteran indicated that he had difficulty seeing in the distance during service. However, the Veteran has not been afforded an opinion addressing whether any of his eye disabilities were directly related to his active duty service. For all of the above reasons, the Board finds that the record in currently insufficient to decide the claim. Thus, a remand is required to obtain a supplemental VA opinion to address the etiology of the Veteran’s eye disability. 3. Entitlement to an initial evaluation in excess of 20 percent for LUE peripheral neuropathy is remanded. The Veteran’s last VA examination for his service-connected LUE peripheral neuropathy was in November 2013, more than seven years ago. At a February 2016 hearing before a Decision Review Officer (DRO), the Veteran testified that the neuropathy in his left hand had become progressively worse over the years, and he could hardly hold anything with his left hand. At a December 2020 Board hearing, the Veteran testified that he barely used his left arm, that he had a loss of strength, and that he tended to drop things that he held in his left hand. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the Veteran’s LUE peripheral neuropathy may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. 4. Entitlement to an evaluation in excess of 70 percent for PTSD is remanded. The Veteran’s last VA examination for his service-connected PTSD was in April 2015, almost 6 years ago. Since his last VA examination, the Veteran testified that he had moved to Mississippi and lived within hearing range of Camp Shelby. He heard the shelling, artillery, helicopters and C-130s flying over the house. He said that the noises would wake him up in the middle of night, and he would end up outside in the bushes. He had nightmares, was easily startled and reacted inappropriately. See February 2016 DRO hearing and December 2020 Board hearing transcripts. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the Veteran’s PTSD may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. 5. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU. However, the claim for a TDIU may be affected by the outcome of the service connection claims for a neck disability and eye disability and the higher evaluation claims for LUE peripheral neuropathy and PTSD. Thus, it would be premature to adjudicate the TDIU claim until the service connection and higher evaluation claims have been considered. Therefore, the issues are inextricably intertwined, and the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s neck disability, eye disability, LUE peripheral neuropathy, and PTSD that are not currently of record. 2. Obtain an addendum opinion by an appropriately qualified clinician to determine whether the Veteran’s current neck disability is at least as likely as not related to his active duty service. In providing the above opinion, the examiner must specifically address the Veteran’s report of hard helicopter landings during service and his report of injury following a grenade explosion. See December 2020 Board hearing testimony. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Obtain an addendum opinion by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s eye disability. The examiner should provide an opinion that addresses the following: (a.) Is it at least as likely as not that the Veteran’s eye disability is related to active duty service? (b.) Is it at least as likely as not that the Veteran’s eye disability is caused by his service-connected diabetes mellitus, type II? (c.) Is it at least as likely as not that the Veteran’s eye disability is aggravated beyond its natural progression by his service-connected diabetes mellitus, type II? In providing the above opinions, the examiner must address each of the Veteran’s current eye diagnoses, including presbyopia, dry eyes, glaucoma, partial retinal detachment, nuclear sclerosis cataract, and posterior vitreal detachment. The examiner must also address the Veteran’s contention that he had difficulty seeing in the distance during service. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the current severity of his service-connected LUE peripheral neuropathy. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected LUE peripheral neuropathy, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. 5. Schedule the Veteran for an examination by an appropriately qualified clinician to determine the current severity of his service-connected PTSD. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected PTSD, to include in an occupational setting and in performing ordinary, daily activities. (Continued on the next page)   All findings should be fully documented in the examination report. 6. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.