Citation Nr: 21020975 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 10-02 406 DATE: April 8, 2021 ORDER Entitlement to a 70 percent initial rating for posttraumatic stress disorder (PTSD) from April 15, 2009 to April 9, 2014 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to special monthly compensation (SMC) at the 38 U.S.C. § 1114 (s) rate is granted from March 29, 2018 onward, subject to the regulations pertaining to the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) on an extraschedular basis from April 15, 2009 to April 9, 2014 is dismissed. Entitlement to an initial rating higher than 40 percent for diabetes mellitus, type II with erectile dysfunction (ED) is denied. Entitlement to an initial compensable rating from March 29, 2018 to June 10, 2019 and 60 percent from June 11, 2019 for diabetic nephropathy is denied. Entitlement to an initial rating higher than 20 percent for right upper extremity diabetic peripheral neuropathy is denied. Entitlement to an initial rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy is denied. Entitlement to an initial rating higher than 20 percent for right lower extremity diabetic peripheral neuropathy affecting the sciatic nerve is denied. Entitlement to an initial rating higher than 20 percent for left lower extremity diabetic peripheral neuropathy affecting the sciatic nerve is denied. Entitlement to an initial separate rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy affecting the femoral nerve from June 11, 2019 is denied. As new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, the appeal to this extent is allowed. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. From April 15, 2009 to April 9, 2014, the service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. 2. As entitlement to TDIU is warranted based on the service-connected PTSD, from March 29, 2018 onward the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent or more. 3. During the pendency of this appeal, an August 2020 rating decision granted entitlement to TDIU effective April 15, 2009, the date the Veteran’s claim was received. 4. The Veteran’s diabetes mellitus type II with ED is not manifested by episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 5. From March 29, 2018 to June 10, 2019, the service-connected diabetic nephropathy was not manifested by hyaline, red blood cells, transient or slight edema, or hypertension at least 10 percent disabling; from June 11, 2019 onward the service-connected diabetic nephropathy was not manifested by peristent edema, creatine 4 mg percent or higher, generalized poor health, the need for regular dialysis, BUN 40mg percent or greater, markedly decreased function of kidney or other organ systems. 6. For the entire appeal period right upper extremity diabetic peripheral neuropathy at most is productive of mild impairment, without evidence of moderate or severe incomplete paralysis or complete paralysis of all radicular groups. 7. For the entire appeal period left upper extremity diabetic peripheral neuropathy at most is productive of mild impairment without evidence of moderate or severe incomplete paralysis or complete paralysis of all radicular groups. 8. For the entire appeal period right lower extremity diabetic peripheral neuropathy at most is productive of moderate incomplete paralysis of the sciatic nerve. 9. For the entire appeal period left lower extremity diabetic peripheral neuropathy at most is productive of moderate incomplete paralysis of the sciatic nerve. 10. From June 11, 2019 right lower extremity diabetic peripheral neuropathy at most is productive of mild incomplete paralysis of the femoral nerve. 11. In the last final March 2017 rating decision the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for hypertension. 12. Evidence received since the March 2017 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for hypertension. CONCLUSIONS OF LAW 1. From April 15, 2009 to April 9, 2014 the criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. From March 29, 2018 onward, the criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114 (s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). 3. There remains no allegation of specific error of fact or law in the determination regarding entitlement to TDIU on an extraschedular basis from April 15, 2009 to April 9, 2014. 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. §§ 19.35, 20.101, 20.200, 20.201, 20.202, 20.302. 4. The criteria for a rating in excess of 40 percent for diabetes mellitus, type II with ED have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.119, Diagnostic Code 7913. 5. The criteria for an initial compensable rating from March 29, 2018 to June 10, 2019 and 60 percent from June 11, 2019 for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. 6. For the entire appeal period the criteria for an initial rating higher than 20 percent for right upper extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8513. 7. For the entire appeal period the criteria for an initial rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8513. 8. For the entire appeal period the criteria for an initial rating higher than 20 percent for right lower extremity diabetic peripheral neuropathy affecting the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520. 9. For the entire appeal period the criteria for an initial rating higher than 20 percent for left lower extremity diabetic peripheral neuropathy affecting the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520. 10. From June 11, 2019 the criteria for an initial rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy affecting the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8526. 11. The March 2017 rating decision denying the Veteran’s claim of entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 12. New and material evidence has been submitted since the last denial in March 2017 and the claim of service connection for hypertension is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1969 to January 1971, to include service in the Republic of Vietnam. In January 2018, the Board granted the Veteran an increased rating of 50 percent for his PTSD, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In September 2018, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). In March 2020 the Board granted a 70 percent rating for PTSD from April 10, 2014, denied a rating higher than 50 percent prior to April 10, 2014, granted an earlier effective date of April 10, 2014 for TDIU, and remanded the issue of entitlement to TDIU on an extraschedular basis prior to April 10, 2014. The Veteran appealed the Board’s decision to the Court only to the extent that the Board denied an initial rating higher than 50 percent for PTSD prior to April 10, 2014. The parties noted that the Veteran did not contest that part of the Board’s decision that denied a rating in excess of 70 percent from April 10, 2014 for PTSD. In November 2020 the Court issued an order that vacated the Board decision and remanded the claim for compliance with the October 2020 JMPR. In the October 2020 JMPR the parties agreed that the Board did not address relevant evidence relating to the Veteran’s symptoms, which includes sleep disturbances, irritability, hypervigilance, distressing recollections, memory problems, crowd avoidance, difficulty getting along with others including siblings, and suicidal ideation. During the pendency of the appeal, the Veteran in February 2020 perfected his appeal to the remaining issues on appeal to include entitlement to (SMC) at the 38 U.S.C. § 1114 (s) rate, claim to reopen service connection for hypertension, and higher ratings for diabetes mellitus, diabetic nephropathy, and peripheral neuropathy of the upper and lower extremities. Lastly, in a September 2020 letter VA advised the Veteran that his election to participate in the modernized review system on September 11, 2020 was received and that in response to his request, his claim for TDIU prior to April 10, 2014 on an extra-schedular basis was discontinued in the legacy appeals processing. However, in a January 2021 letter, VA advised the Veteran that his request for a higher-level review on the issue of entitlement to individual unemployability prior to April 10, 2014 will not be processed, because the benefit sought has already been granted, noting that the rating decision dated August 14, 2020 granted entitlement to TDIU effective April 15, 2009.   Higher Ratings A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). Issue 1: Entitlement to an initial rating higher than 50 percent for PTSD from April 15, 2009 to April 9, 2014. The Veteran’s PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes, with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), that ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. The United States Court of Appeals for Veterans Claims held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Bankhead v. Shulkin, 29 Vet. App. 10 (2017). By way of history, the Veteran’s underlying claim for service connection for PTSD was received on April 15, 2009. The Board places high probative value on the evidence from April 15, 2009 to April 9, 2014 showing that the Veteran’s PTSD approximates the criteria for a 70 percent rating based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board acknowledges that on VA examination in August 2009, the examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Board also acknowledges that the evidence shows symptoms that are included in the criteria for ratings lower than 70 percent. However, the VA opinion and such findings are outweighed by the evidence summarized below. On VA examination in August 2009, the examiner found that the Veteran’s symptoms included hypervigilance, sleep disturbance, avoidance behaviors, and irritability. In the October 2009 notice of disagreement the Veteran stated that PTSD caused trouble in his marriage and sleep impairment. He reported being irritable most of the time with an extremely short temper. He stated he stayed at home to avoid contact with other people. The Veteran noted that his productivity suffered greatly and he had to retire. In the January 2010 Form 9 Appeal, the Veteran stated that he could get angry to the point of wanting to hurt someone badly. He noted that he was verbally abusive towards his wife because he could not control his temper. The Veteran stated that his inability to sleep due to his PTSD was a contributing factor to him leaving his job. He reported that his short and long term memory increasingly became impaired to the point he could not remember names of people he knew his whole life. On VA examination in April 2014, the Veteran reported that he did not get along with his two siblings. He had not seen his sister in the last two years and only saw his brother a couple of times in the last year. He reported that he had intermittent passive suicidal ideation and sometimes thought people would be better off without him, the examiner noted that his last thought was about a few weeks ago. He reported that he did not like to be around a lot of people. The examiner noted that the Veteran stopped working in 2009 due to difficulties working with others. The examiner opined that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In his October 2018 TDIU claim, received in December 2019, the Veteran reported that he retired in March 2009 due to his PTSD. In a January 2019 TDIU vocational assessment report the examiner opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment including due to his service-connected PTSD since at least 2009. In a February 2021 brief, the Veteran requested a 70 percent rating. Thus, the Veteran through his attorney has limited his PTSD rating appeal to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Given that the 70 percent rating expressly sought by the Veteran has been granted, the decision herein represents a full grant of the benefit sought on appeal. It is also noteworthy that at no point during the appeal period has the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran had total occupational and social impairment. See, e.g., August 2009 VA examination showing that the Veteran was fully alert and oriented. Issue 2: Entitlement to SMC at the 38 U.S.C. § 1114 (s). The Board must consider entitlement to SMC if raised by the rating issue on appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991) SMC at the (s) rate is payable if a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.§ 1114 (s); 38 C.F.R. § 3.350 (i). For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of TDIU if granted for a single disability; or, on the basis of a temporary total rating. Subsection 1114 (s) housebound benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). However, in Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to special monthly compensation for a housebound rating. In other words, 38 U.S.C. § 1114 (s) for housebound benefits does not limit “a service-connected disability rated as total” to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Id. Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. The Veteran was granted TDIU based on his service-connected disabilities. See July 2019 and August 2020 rating decision. However, as discussed above the Veteran has been unable to secure or follow a substantially gainful occupation due to his PTSD alone. As such, the first element of entitlement to SMC at the (s) rate is shown. The August 2020 rating decision code sheet shows the Veteran is service connected for PTSD rated 50 percent disabling from April 15, 2009 and 70 percent from April 10, 2014; diabetic nephropathy rated zero percent from March 29, 2018 and 60 percent from June 11, 2019; diabetes mellitus type II with ED rated 10 percent from April 15, 2009, 20 percent from February 19, 2013, and 40 percent from March 29 2018; peripheral neuropathy of upper and lower extremities each rated 20 percent disabling from March 29, 2018; and, right lower diabetic peripheral neuropathy rated 10 percent from June 11, 2019. The Veteran had a combined 60 percent rating from April 15, 2009, 80 percent from April 10, 2014, 90 percent from March 29, 2018, 100 percent from June 11, 2019, and TDIU from April 15, 2009. In light of the decision herein PTSD is rated 70 percent disabling from April 15, 2009. Here, from March 29, 2018 the Veteran’s disabilities other than PTSD combine to at least 60 percent. Thus, SMC at the rate specified at 38 U.S.C. § 1114 (s) must be granted. Issue 3: Entitlement to TDIU on an extraschedular basis prior to April 10, 2014. As discussed above, the Veteran throughout the appeal period contends that he is unable to follow a substantially gainful occupation due to his service-connected PTSD. Thus, the issue of TDIU has been raised as part of the increased rating claim on appeal and is currently before the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran’s underlying claim of service connection for PTSD was received on April 15, 2009, the date of claim of entitlement to TDIU is April 15, 2019. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). In March 2020 the Board remanded the issue of entitlement to TDIU on an extraschedular basis prior to April 10, 2014. However, in a rating decision in August 2020 the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU effective April 15, 2009. In the August 2020 Supplemental Statement of the Case (SSOC) the AOJ noted that although the Board ordered a submission of the issue of an extraschedular TDIU prior to April 10, 2014 to the Director of the Compensation Service such submission was no longer warranted due to the August 2020 rating decision awarding entitlement to TDIU effective April 15, 2009. The Board finds on these facts that the Veteran’s appeal for entitlement to TDIU on an extraschedular basis prior to April 10, 2014 has been rendered moot. As a result, there remains no case or controversy to resolve, and the appeal concerning entitlement to TDIU on an extraschedular basis prior to April 10, 2014 is dismissed. Issue 4: Entitlement to an initial rating higher than 40 percent for diabetes mellitus, type II with ED. Diabetes mellitus type II (herein after diabetes mellitus or diabetes) is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Such rating criteria provides that 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring 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 for diabetes mellitus requiring 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) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. The use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. “Regulation of activities” is defined under Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Id. Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating; each criterion listed in a rating must be met or more closely approximated in order to warrant such a rating. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In other words, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component. By way of history, the Veteran on March 29, 2018 filed his intent to file a claim for compensation and on September 10, 2018 his claim was received for a higher rating for diabetes mellitus. Based upon a review of the record, the Board finds that the Veteran’s service-connected diabetes mellitus does not more nearly approximate the criteria for a rating higher than 40 percent during the appeal period as the Veteran’s diabetes mellitus did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care providers. As noted above, the criteria for a higher rating under DC 7913 is successive, meaning that to obtain a 100 percent rating the Veteran must first satisfy all of the criteria for a 60 percent rating. The Veteran has not demonstrated episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, and thus has not demonstrated all criteria for a 60 percent rating, a rating in excess of 40 percent is not warranted. The pertinent findings show that on the July 2018 diabetes mellitus Disability Benefits Questionnaire (DBQ) examination submitted by the Veteran the examiner determined that the Veteran needed prescribed insulin with more than one injection per day. The examiner opined that the Veteran required regulation of activities as part of medical management of diabetes, noting that he must avoid prolonged physical activity to avoid hypoglycemia. The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. He did not have episodes of ketoacidosis or hypoglycemia over the past twelve months requiring hospitalization. He did not have progressive unintentional weight loss but did have progressive loss of strength attributable to diabetes mellitus. The examiner opined that the Veteran’s diabetic complications included diabetic peripheral neuropathy. On VA diabetes examination in September 2018, the Veteran indicated that insulin was required and the Veteran needed to limit the duration of physical activity to avoid hypoglycemia. The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. In the last 12 months he has had zero hospitalizations for episodes of ketoacidosis or hypoglycemic reactions or hypoglycemia. The Veteran has not had progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner indicated that the Veteran’s complications of diabetes mellitus include diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes mellitus and diabetic retinopathy. On VA diabetes mellitus examination in June 2019, the examiner indicated that the Veteran had a history requiring more than 1 injection per day. The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. In the last 12 months he has had zero hospitalizations for episodes of ketoacidosis or hypoglycemia. The examiner opined that the Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. Complications of diabetes mellitus included diabetic peripheral neuropathy and diabetic nephropathy or renal dysfunction. The above findings are not controverted by the other competent evidence of record. To the extent that the Veteran may believe that he is entitled to a higher rating, the Board finds the objective medical findings by skilled professionals are more persuasive which, as discussed above, do not support a higher rating. As discussed above, Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. The Veteran is service connected for diabetes mellitus type II with erectile dysfunction rated 40 percent disabling. Noncompensable complications are considered part of the diagnostic process under Diagnostic Code 7913. A 20 percent rating is assigned for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Veteran underwent a VA examination in September 2018 and declined to have a genital exam. On the June 2019 VA examination physical examination of his penis was normal. Thus the evidence does not more nearly approximate the criteria for a separate compensable rating for ED. To the extent that the Veteran had diabetic peripheral neuropathy and nephropathy he has been granted separate compensable ratings for these disabilities which are addressed below. To the extent that the Veteran has diabetic retinopathy he also has been assigned a separate rating, which is not in appellate status. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the Veteran’s claim must be denied. See 38U.S.C. §5107(b). Issue 5: Entitlement to an initial compensable rating from March 29, 2018 to June 10, 2019 and 60 percent from June 11, 2019 for diabetic nephropathy. The Veteran’s diabetic nephropathy is rated under Diagnostic Code 7541. Diagnostic Code 7541 pertains to renal involvement in systemic disease processes and directs that the disability is to be rated as renal dysfunction. For renal dysfunction, a noncompensable rating is warranted for albumin and casts with history of acute nephritis; or hypertension non-compensable under diagnostic code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg percent; or, creatinine 4 to 8mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion. A maximum rating of 100 percent is warranted where renal dysfunction requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg percent; or, creatinine more than 8mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. By way of history, in a November 2018 rating decision service connection for diabetic nephropathy was granted effective March 29, 2018 and assigned a noncompensable rating. In a rating decision in December 2019 a 60 percent rating was assigned effective June 11, 2019. Based on the evidence of record, the criteria for an initial compensable rating prior to June 11, 2019 and a rating higher than 60 percent thereafter is not more nearly approximated. While the Veteran had hypertension, as discussed further below, VA examiners opined that his hypertension was not a symptom of diabetic nephropathy. The pertinent findings show that on VA kidney examination in September 2018, the examiner noted that the Veteran had a history of hypertension but no known hypertensive kidney disease. The examiner opined that the Veteran had renal dysfunction, which did not require regular dialysis. The Veteran’s symptoms of renal dysfunction included persistent proteinuria (albuminuria). The examiner opined that the Veteran did not have hypertension or heart disease due to renal dysfunction or caused by a kidney condition. The examiner opined that the Veteran did not have symptomatic renal tubular disorder or frequent attacks of colic with infection. The Veteran did not have kidney, uretal or bladder calculi nor did he have urinary tract/kidney infection. The Veteran did not have kidney transplant or removal nor did he have tumors and neoplasms. The examiner did not indicate that the Veteran had hyaline, red blood cells, or edema. Laboratory tests show the Veteran’s BUN was normal, creatine was normal, EGFR was abnormal, proteinuria was abnormal. On VA kidney examination in June 2019, the examiner indicated that the Veteran did not require regular dialysis. Symptoms pertaining to renal dysfunction included persistent proteinuria and slight edema. The examiner opined that the Veteran did not have hypertension and/or heart disease due to renal dysfunction or caused by a kidney condition. The Veteran did not have symptomatic renal tubular disorder nor did he have frequent attacks of colic with infection. The Veteran did have kidney urolithiasis but did not have signs or symptoms due ot urolithiasis. The examiner indicated that laboratory studies show the Veteran’s BUN was normal and his creatine was abnormal, resulting in 1.45 with a reference range of.76-1.27. EGFR was abnormal with a result of 48. Proteinuria (albumin) was abnormal with a 1 plus result. Constant albuminuria with some edema was abnormal with a result of 120.8. The above findings are not controverted by the other competent evidence of record. To the extent that the Veteran may believe that he is entitled to higher ratings, the Board finds the objective medical findings by skilled professionals are more persuasive which, as discussed above, do not support a higher rating that is not being granted herein. While the Veteran had hypertension, VA examiners opined that his hypertension was not a symptom of diabetic nephropathy. The findings discussed above show that the Veteran from March 29, 2018 to June 10, 2019 did not meet the criteria for a compensable rating as they do not show hyaline, red bloods cells or edema. From June 11, 2019 the findings do not show that the Veteran met the criteria for a rating higher than 60 percent as he did not have peristent edema, creatine 4 mg percent or higher, or generalized poor health. He did not require regular dialysis nor did he have BUN 40mg percent or greater. The evidence does not show markedly decreased function of kidney or other organ systems. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the Veteran’s claim must be denied. See 38U.S.C. §5107(b).   Issues 6-10: Entitlement to an initial rating higher than 20 percent for right upper extremity diabetic peripheral neuropathy; entitlement to an initial rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy; entitlement to an initial rating higher than 20 percent for right lower extremity diabetic peripheral neuropathy affecting the sciatic nerve; entitlement to an initial rating higher than 20 percent for left lower extremity diabetic peripheral neuropathy affecting the sciatic nerve; and, entitlement to an initial separate rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy affecting the femoral nerve. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board observes that the words “mild,” “moderate,” and “severe” as used in the various codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. By way of history, on March 29, 2018 the Veteran’s intent to file a claim for compensation was received. On September 19, 2018 the Veteran’s claim for bilateral neuropathy due to diabetes mellitus was received. In a rating decision in November 2018 service connection for diabetic peripheral neuropathy of the right upper, left upper, right lower and left lower extremities was granted effective March 29, 2018 and a 20 percent rating was assigned to each of the four extremities. In a rating decision in December 2019 service connection for right lower diabetic peripheral neuropathy affecting the femoral nerve was granted with an evaluation of 10 percent effective June 11, 2019. The Veteran is in receipt of a 20 percent rating for diabetic peripheral neuropathy of the right upper extremity and left upper extremity under Diagnostic Code 8513. Under Diagnostic Code 8513 evaluations of 20, 30, and 60 percent, respectively, are assigned for mild, moderate, and severe, incomplete paralysis of the minor extremity. Evaluations of 20, 40, and 70 percent, respectively, are assigned for mild, moderate, and severe, incomplete paralysis of the major extremity . An 80 percent rating is warranted for complete paralysis affecting the minor extremity, and a 90 percent rating is warranted for the same manifestations in the major extremity. During the entire appeal period the evidence does not more nearly approximate the criteria for an initial rating higher than 20 percent for diabetic peripheral neuropathy of the right upper extremity and left upper extremity for the following reasons. On VA examination for diabetic sensory motor peripheral neuropathy in September 2018, the Veteran complained of numbness in his hands. Physical examination shows that the Veteran did not have constant pain in his upper extremities. He did not have intermittent pain in his upper extremities. He did not have paresthesias and/or dysesthesias in his upper extremities. He had moderate numbness in his upper extremities. Neurologic exam shows the Veteran had 5/5 normal strength in bilateral elbow flexion, elbow extension, wrist flexion, wrist extension, grip, and pinch. Deep tendon reflexes in the upper extremities were all normal. Light touch monofilament testing was normal in the right shoulder area and decreased in the left shoulder area. It was normal in the right inner/outer forearm and decreased in the left. It was decreased in hands and fingers in both upper extremities. Vibration sensation was decreased in both upper extremities. Cold sensation was decreased. The examiner determined that there was no muscle atrophy. The examiner opined that the Veteran had mild incomplete paralysis of the right radial (musculospiral) nerve in both upper extremities and mild incomplete paralysis of the median nerve in both upper extremities. He had mild incomplete paralysis of the ulnar nerve in both upper extremities. The examiner concluded that the Veteran had mild severity of upper extremity sensory neuropathy. On VA examination for diabetic sensory motor peripheral neuropathy in June 2019, the examiner noted that the Veteran had a history of burning, numbness, and tingling in the right hand. The examiner noted that the Veteran was right hand dominant. Physical examination shows that the Veteran did not have intermittent pain in the upper extremities. He did not have paresthesias and/or dysesthesias in the left upper extremity. In the right upper extremity it was mild. The Veteran did not have numbness in the left upper extremity. Numbness in the right upper extremity was mild. Neurologic exam shows the Veteran had 5/5 normal strength in bilateral elbow flexion and elbow extension. He had less than normal 4/5 strength in right wrist flexion and normal 5/5 strength in left wrist flexion. Strength in bilateral wrist extension was normal. Grip was 4/5 in the right extremity and 5/5 in the left extremity. Bilateral pinch had 5/5 normal strength. Deep tendon reflexes were 2 plus normal in the left biceps, bilateral triceps and brachioradialis. It was 1 plus decreased in the right biceps. Light touch was normal in the bilateral shoulder area, inner/outer forearm, and hand/fingers. Vibration sensation was normal in the upper extremities. Cold sensation was normal in the upper extremities. There was no muscle atrophy. The examiner opined that the Veteran had mild incomplete paralysis of the radial nerve (musculospiral) in the right upper extremity and the radial nerve in the left upper extremity was normal. The examiner concluded that the severity of the Veteran’s sensory neuropathy in the upper extremities was mild. In February 2020 the Veteran’s attorney contended that on the September 2018 VA examination the Veteran had bilateral mild incomplete paralysis of the median nerve warranting an additional separate 10 percent rating for each upper extremity. However, as the Veteran is already in receipt of ratings that contemplate impairment in all radicular groups, separate ratings for such disabilities under Diagnostic Codes 8515 (median nerve) and 8516 (ulnar nerve), based on the same neurological symptoms would constitute prohibited pyramiding. 38 C.F.R. § 4.14. The Veteran is in receipt of a 20 percent rating for diabetic peripheral neuropathy of the right lower extremity and left lower extremity under Diagnostic Code 8520 for the sciatic nerve for the entire appeal period. As discussed above, he is in receipt of a separate 10 percent rating for right lower extremity diabetic peripheral neuropathy affecting the femoral nerve from June 11, 2019. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve is demonstrated when the foot dangles and drops, when there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis merits a 20 percent evaluation, and mild paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a Diagnostic Code 8520. Diagnostic Code 8526 evaluates anterior crural nerve (femoral) paralysis. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. During the entire appeal period the evidence does not more nearly approximate the criteria for an initial rating higher than 20 percent for diabetic peripheral neuropathy of the right lower extremity and left lower extremity pertaining to the sciatic nerve based on moderately severe incomplete paralysis. The evidence does not more nearly approximate the criteria for a separate initial rating higher than 10 percent from June 11, 2019 based on moderate incomplete paralysis. On VA examination for diabetic sensory motor peripheral neuropathy in September 2018, the Veteran complained of feet hurting on the bottom with feeling of numbness and intermittent tingling. Physical examination shows that the Veteran did not have constant pain in his lower extremities. He did have intermittent severe pain in his lower extremities. He did have moderate paresthesias and/or dysesthesias in his lower extremities. He had moderate numbness in his lower extremities. Neurologic exam shows the Veteran had 5/5 normal strength in knee extension, knee flexion and ankle dorsiflexion. Ankle plantar flexion in both lower extremities was 4/5, which was less than normal. Deep tendon reflexes in the lower extremities were all normal. Light touch monofilament testing was normal in the knee/thigh in both lower extremities but decreased in the ankle/lower leg and foot/toes in both lower extremities. Vibration sensation was decreased in the left lower extremity. It was absent in the right lower extremity. Cold sensation was decreased in the lower extremities. The examiner determined that there was no muscle atrophy. The examiner opined that the Veteran had moderate incomplete paralysis of the sciatic nerve in both lower extremities. The examiner opined that the Veteran’s femoral nerve was normal in both lower extremities. The examiner concluded that the Veteran had severe lower extremity sensory neuropathy. On VA examination for diabetic sensory motor peripheral neuropathy in June 2019, physical examination shows that the Veteran had mild intermittent pain in the lower extremities. He had moderate paresthesias and/or dysesthesias in the lower extremities. The Veteran had moderate numbness in the lower extremities. Neurologic exam shows bilateral knee extension, knee flexion and ankle plantar flexion and dorsiflexion had 5/5 normal strength. Deep tendon reflexes were 2 plus normal for the knees. It was 1 plus decreased in both ankles. Light touch was normal in the left knee/thigh. It was decreased in the right knee/thigh, ankles/lower legs, and foot/toes. Vibration sensation was normal in the lower extremities. Cold sensation was decreased in the lower extremities. There was no muscle atrophy. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve in both lower extremities. He had mild incomplete paralysis of the femoral nerve in the right lower extremity. The examiner opined that the femoral nerve in the left lower extremity was normal. The examiner concluded that the severity of the Veteran’s sensory neuropathy in the lower extremities was mild. The above findings are uncontroverted by the other competent evidence of record. All potentially applicable Diagnostic Codes have been considered in deciding the Veteran’s claims for higher initial ratings. To the extent that the Veteran may believe that he is entitled to higher ratings, the Board finds the objective medical findings by skilled professionals are more persuasive which, as discussed above, do not support higher ratings. Thus, the preponderance of the evidence is against the claims for initial ratings higher than 20 percent for right upper extremity diabetic peripheral neuropathy; higher than 20 percent for left upper extremity diabetic peripheral neuropathy; higher than 20 percent for right lower extremity diabetic peripheral neuropathy affecting the sciatic nerve; higher than 20 percent for left lower extremity diabetic peripheral neuropathy affecting the sciatic nerve; and a separate rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy affecting the femoral nerve, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b).   Issue 11: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO in the March 2017 rating decision denied the Veteran’s hypertension claim based on the determination that the Veteran did not have hypertension during service, it did not develop to a compensable degree within the specified time period after service to qualify for the presumption of service connection, the evidence did not show that hypertension was due to service or secondary to the service-connected diabetes mellitus. The Veteran did not perfect an appeal of the above decision and additional new and material evidence was not received within a year following the decision. See 38 C.F.R. § 3.156(b). The decision is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the last final rating decision includes a brief from the Veteran’s attorney in February 2020 contending that the Veteran’s hypertension is a result of the Veteran’s exposure to Agent Orange during his service in Vietnam. The attorney cited to National Academy of Sciences study in which it concluded in its Veterans and Agent Orange: Update 11 (2018) (“VAO Updated) that there is now sufficient evidence of an association between exposure to herbicide agents and hypertension. Thus, the evidence received is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for hypertension. The credibility of the evidence is presumed for the purposes of reopening the claim of service connection for hypertension. REASONS FOR REMAND Issue 12: Entitlement to service connection for hypertension. As discussed above the Veteran had active service from January 1969 to January 1971, to include service in the Republic of Vietnam and a 2018 National Academy of Sciences study shows that there is sufficient evidence of an association between exposure to herbicide agents and hypertension. Although on VA examination in September 2018 the examiner noted the Veteran’s metabolic syndrome was most likely caused by herbicide exposure during his service in Vietnam, the examiner also opined that the causality between such exposure and the development of hypertension could be addressed in the future. Thus, the Board finds that a VA opinion is necessary to determine whether hypertension is etiologically related to the Veteran’s presumed exposure to herbicides in service. The matter is REMANDED for the following action: Obtain an opinion from a VA examiner with appropriate expertise to determine the nature and etiology of the Veteran’s hypertension. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is etiologically related to service, to include presumed   exposure to herbicides. In formulating his or her opinion, the examiner’s attention is directed to the latest research, including by the National Academy of Sciences. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.