Citation Nr: 21027532 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-01 152 DATE: May 6, 2021 ORDER Entitlement to service connection for hyperkeratosis of the feet, due to diabetes mellitus, is granted. Entitlement to service connection for an esophageal condition, to include as due to herbicide agent exposure, is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to a separate 40 percent rating for right upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, is granted. Entitlement to a separate 30 percent rating for left upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, is granted. Entitlement to a 20 percent rating for bilateral diabetic retinopathy with cataracts, prior to September 19, 2016, is granted. Entitlement to a 10 percent rating for bilateral diabetic retinopathy, from September 19, 2016, is granted. REMANDED Entitlement to a rating in excess of 30 percent for anxiety is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his hyperkeratosis of the feet is due to his service-connected diabetes mellitus. 2. The probative evidence of record does not show that the Veteran has an esophageal condition, to include gastroesophageal reflux disease (GERD) and Barrett's esophagus, that is proximately due to his exposure to herbicides in service, nor due to his service-connected diabetes mellitus. 3. The probative evidence of record does not show that the medical management of the Veteran's diabetes mellitus requires regulation of activities. 4. From March 14, 2013 to January 19, 2017, the Veteran's right upper extremity peripheral neuropathy manifested in no greater than moderate incomplete paralysis (all radicular groups). 5. From March 14, 2013 to January 19, 2017, the Veteran's left upper extremity peripheral neuropathy manifested in no greater than moderate incomplete paralysis (all radicular groups). 6. Prior to September 19, 2016, the Veteran's corrected distance visual acuity was 20/40 right and 20/50 left (at worst), and the Veteran had a left remaining visual field between 46 and 60 degrees. 7. From September 19, 2016, the Veteran's corrected distance visual acuity was 20/40 or better bilaterally, and the Veteran had a left remaining visual field between 46 and 60 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hyperkeratosis of the feet, due to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2021). 2. The criteria for entitlement to service connection for an esophageal condition, to include as due to herbicide agent exposure, to include as due to service-connected diabetes, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.119, Diagnostic Code (DC) 7913. 4. The criteria for a separate 40 percent rating for right upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8613. 5. The criteria for a separate 30 percent rating for left upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8613. 6. Prior to September 19, 2016, the criteria for a 20 percent rating for bilateral diabetic retinopathy with cataracts have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.79, DCs 6006, 6040, 6066, 6080. 7. From September 19, 2016, the criteria for a 10 percent rating, but no greater, for bilateral diabetic retinopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.79, DCs 6006, 6040, 6066, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1967 to December 1968. His awards include the Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's prior representative (attorney) withdrew representation in March 2018. The Veteran selected new representation (Disabled American Veterans) in July 2018. These claims were previously before the Board in June 2019. The Board remanded to request that the Veteran submit private treatment records/releases for private treatment records, and for the Veteran to be scheduled for VA examinations. The Board also raised the issue of entitlement ot TDIU in the June 2019 introduction, as a downstream issue from his increased rating claims via Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, it was requested that he complete TDIU claim form so that VA could have information on his employment history and his last date of employment. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There is a presumption of exposure to herbicides agents (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era, such as the Veteran in this case. See 38 U.S.C. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hyperkeratosis, due to diabetes mellitus, is granted. The Veteran is seeking entitlement to service connection for "dry skin" (August 2018 statement)/ "xerosis" (December 2020 brief) secondary to his diabetes mellitus. The Veteran and his representatives have not provided any argument related to his contention. Although DAV submitted a brief in December 2020, no specific arguments were waged. Additionally, the Veteran's August 2014 notice of disagreement and December 2017 substantive appeal only indicated the wish to appeal "all issues," with no specific argument or statements related to his skin condition provided. The Veteran's service treatment records include March 1967 treatment for a painful callus on the right foot. His December 1968 separation medical history included his selection of a history of "foot trouble" and "skin diseases;" however, these selections were explained as "Athlete's foot for 7 months." No findings related to his feet or skin were noted on his separation medical examination. A February 2007 record showed that the Veteran was assessed with "tyloma with fissuring" for which he was told about vinegar soaks and given a prescription for Urea 20% cream (Carmol-20). He was also noted to have non-insulin dependent diabetes. He had hyperkeratotic plaques posterior plantar right heel with fissures. Hyperkeratotic tissue debrided without incidence. He was given a refill on urea cream, which he used daily, "really helps with build-up of callus on back of right heel." A May 23, 2017 VA podiatry record, wherein the Veteran was receiving diabetic foot care, included the Veteran's complaint of dry skin on the inside of the right heel present for 2-3 months. In the last 6 weeks he had been applying heel cream at home, which had been very helpful. On evaluation, he had medial plantar aspect of the right heel an opaque discoloration absent petechial spots, erythema, edema, nor open draining/signs of infection. He was assessed with corn callus medal plantar right heel. An October 25, 2017 VA podiatry record noted hyperkeratosis of the plantar bilateral calcaneus and lateral 5th left toe with opaque discoloration absent erythema, edema, or palpable fluid. He was assessed with corn callus plantar bilateral heels and 5th left toe. The hyperkeratotic tissue was debrided without incident or pain. He was educated on diabetic foot care. On February 26, 2018, the Veteran requested a refill of the "cream for the back of his right heel" from VA podiatry. He noted that when he stopped using it, the pain/discomfort returned to his heel. He had post plantar right heel opaque discoloration absent erythema edema nor palpable fluid. He was diagnosed with corn callus plantar right calcaneus and onychauxis. Similar findings were reported in a March 27, 2019 VA diabetic foot care podiatry record. On November 23, 2019, the Veteran participated in a VA skin examination. He was diagnosed with xerosis (dry skin). The examiner noted that this condition was initially diagnosed in 2014, when the Veteran started to notice dry, cracked, fissured skin on his left heel. The skin had improved with Urea dry skin cream, which he applied "most days." At the time of the examination, the Veteran had no xerosis. His skin condition was "currently without any visible characteristic lesions at the time of the examination. Its last previously location was the 'left heel.'" The examiner provided negative nexus opinions regarding direct and Agent Orange exposure theories of entitlement. The examiner found that the xerosis of the left heel started 5 years ago, and was "now well-controlled on a skin cream." Corn callouses tyloma were not found on examination. The xerosis was not present while on active duty, and his December 1968 separation examination did not show xerosis/other skin condition. "Dry skin is caused by multiple factors including common inadequate skin lubrication. There is an insufficient medical relationship nexus between herbicide exposure in the 1960s and some xerosis of the foot developing 45 years later." The examiner also provided a negative secondary service connection nexus opinion. "There is an insufficient medical nexus relationship between diabetes causing some xerosis of the foot. While diabetics may have more dry skin than nondiabetic, the most common cause of dry skin is simple inadequate lubrication of skin." Although the 2019 examiner provided a negative nexus opinion, she did note that diabetic tend to have more dry skin that nondiabetics. The Board also notes that the Veteran developed a skin callus on his right heel in service, and that it was his right heel (and occasionally both heels) that received VA skin treatment/debridement and not his left heel as indicated by the examination report. The Veteran's foot callus treatment has been provided as a part of his diabetic foot care. Resolving reasonable doubt in the Veteran's favor, his hyperkeratosis of the feet is related to or caused by his service-connected diabetes. 2. Entitlement to service connection for an esophageal condition, to include as due to herbicide agent exposure, to include as due to diabetes, is denied. The Veteran is seeking entitlement to service connection for "Barrett's [esophagus] secondary to his diabetes mellitus. The Veteran and his representatives have not provided any argument related to his contention. Although DAV submitted a brief in December 2020, no specific arguments were waged. Additionally, the Veteran's August 2014 notice of disagreement and December 2017 substantive appeal only indicated the wish to appeal "all issues," with no specific argument or statements related to his esophageal condition provided. This Board members review of the Veteran's service treatment records did not reveal any treatment for, complaints of, or diagnoses related to the esophagus/acid reflux. Private treatment records submitted by the Veteran included a January 2003 pathology report from Peconic Pathology Associates which noted that esophageal biopsies were taken to rule out Barrett's esophagus. "They showed fragments of squamous mucosa of the esophagus with surface ulceration and occasional fragments of granular musca with intestinal metaplasia consistent with Berrett's epithelium (scanty evidence)." A March 2003 arteries and veins examination included that the Veteran had a medical history of Barrett's epithelium and a history of gastric reflux and colonic dysplasia. The examiner did not relate these conditions to his diabetes (but did relate his impotence, retinopathy, and peripheral neuropathy to his diabetes). A December 2004 VA treatment record noted that the Veteran had a history of pre-cancerous polyps found in 2002 and a noncancerous polyp found in 2003. His GERD was being treated with Nexium. A January 14, 2013 VA gastrointestinal (GI) note included a review of private treatment records. "No significant clinic notes documenting his symptoms or response to treatment." He underwent EGDs from January 2003 to November 2011, all showed Barrett's esophagus. He was on proton-pump inhibitors (medication to reduce stomach acid) and was doing well. He denied GERD or dysphagia. An April 19, 2013 VA GI record noted that the Veteran was continuing with "outside GI doctor" and did not need services through VA. He brought a March 19, 2013 EGD and colonoscopy report which showed mild colon inflammation and no Barrett's esophagus. An August 17, 2018 VA primary care record included the Veteran's denial of GI symptoms (nausea, vomiting, abdominal pain, etc.). He was assessed with "GERDcontrolled with Omeprazole." In May and July 2019, the Veteran reported increased GERD symptoms to his VA primary care provider. On November 23, 2019, the Veteran participated in a VA esophageal examination. He was diagnosed with GERD and Barrett's esophagus from 2003. He reported that his condition had remained chronic/stable. He was on Omeprazole daily. An upper endoscopy in August 2019 was negative. The examiner provided a negative nexus opinion for the Veteran's GERD, Barrett's esophagus, and colon polyps found on upper and lower endoscopies. "GERD is caused then the lower esophageal sphincter is weakened allowing stomach contents and acid to reflux into the esophagus. Barrett's esophagus is a pre-cancerous condition of the esophagus associated with chronic GERD...Their etiology is multifactorial. None of these conditions were present while the Veteran was on active duty, separation examination of December 23, 1968 was negative." Additionally, the examiner noted that there was "no medical evidence in the medical literature supporting herbicide exposure in Vietnam as the cause of later-developed GERD or Barrett's esophagus." The examiner also provided a negative secondary service connection opinion, noting that there was no medical evidence in the medical literature supporting GERD or Barrett's esophagus were proximately due to diabetes mellitus. In April 2020, the RO sent the Veteran and his representative a letter requesting that he submit copies of private treatment records, or releases for VA to obtain private treatment records, related to his claims. The Veteran did not respond to this request with any additional records or releases related to his private GI treatment. Initially, the Board notes that GERD and Barrett's esophagus are not conditions listed under 38 C.F.R. § 3.309 (e) as presumptively caused by exposure to Agent Orange. Service connection for certain diseases, such as peptic ulcers, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Board notes however, that in this case, there is no medical evidence of record showing a diagnosis of GERD/gastritic ulcer within one year of service; therefore, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is also not warranted. Additionally, the Board finds that direct service connection for GERD/Barrett's esophagus is not warranted. The Veteran's service treatment records did not show that these esophageal conditions began in service, and the medical opinion of record included that his subsequently diagnosed esophageal conditions could not be linked to his service in the 1960s. Lastly, secondary service connection is also not warranted. The available medical opinion of record indicated that GERD/Barrett's esophagus are not conditions that medical literature/studies have linked to diabetes mellitus. The Veteran has presented no arguments to support his claim and the available medical evidence does not indicate a link between his GERD/Barrett's esophagus and his service, exposure to herbicides, or service-connected diabetes mellitus. As such entitlement to service connection for an esophageal condition is not warranted. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. 4. Entitlement to a separate 40 percent rating for right upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, is granted. 5. Entitlement to a separate 30 percent rating for left upper extremity peripheral neuropathy, from March 14, 2013 to January 19, 2017, is granted. The Veteran has continued the appeal for a rating in excess of 20 percent for his diabetes mellitus. Although his representative has presented a brief, a substantive argument for the Veteran's claim for an increased rating for his diabetes was not found in the record. A July 2002 rating decision granted entitlement to service connection for diabetes mellitus, with an initial 20 percent rating. Service connection for retinopathy secondary to diabetes was also granted with an initial noncompensable rating. A February 2003 rating decision established service connection for erectile dysfunction secondary to diabetes. An April 2003 rating decision granted entitlement to service connection for bilateral lower extremity peripheral neuropathy, each rated 10 percent disabling. An April 2005 rating decision continued a 20 percent rating for diabetes. On March 14, 2013, the Veteran filed a claim to "add both eyes to his [service-connected] diabetes," and also entitlement to service connection for Barrett's esophagus and dry skin secondary to diabetes. This was taken as a claim for an increased rating for diabetes mellitus. The November 2013 rating decision on appeal continued the 20 percent rating for diabetes with retinopathy. In April 2016, the Veteran filed a claim for increased ratings for his bilateral lower extremity peripheral neuropathy. A June 2016 rating decision provided increased 20 percent ratings for bilateral lower extremity peripheral neuropathy from April 11, 2016. A March 2020 rating decision granted entitlement to separate ratings for bilateral upper extremity peripheral neuropathy, with 40 percent (right) and 30 percent (left) ratings, effective January 20, 2017. Under 38 C.F.R. § 4.119, Code 7913, a 20 percent rating is assigned when diabetes mellitus requires insulin and a restricted diet, or oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring 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, a restricted diet, and regulation of activities and involving 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. "Regulation of activities" under Code 7913 has been defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). The notes to the Code provide, in part, that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation, and that noncompensable complications are considered part of the diabetic process under the Code 7913. A January 21, 2012 VA endocrine record noted that the Veteran's diabetes was treated with Novolog and Metformin. He "was having [morning] hypoglycemia, so was advised to decrease dinnertime dose" of Novolog. At the time of the visit, the Veteran reported he had been "much better about taking insulin regularly, and maintaining a healthy diet. His fasting sugars had improved, he felt better, and had been exercising 2-3 times per week. A July 18, 2012 VA neurology record noted that the Veteran was being seen for diabetic neuropathy and sciatic pain. He had previously been seen in July 2011 and was on Cymbalta to treat his neuropathy. He stated that the pain was somewhat better controlled in his feet since taking Cymbalta regularly. He has tingling sensation and numbness in his feet starting below the knees and bilateral fingertips. He was still able to work as a mechanic without any deficits. He had full muscle strength throughout. He had normal soft touch sensation of the bilateral upper and lower extremities, with decreased pin prick sensation of the toes and decreased vibratory sensation in the right toes. His deep tendon reflexes were normal except for 3+ biceps on left and 1+/absent of the achilles. He had stable diabetic neuropathy with no change in symptoms since 2011. A January 14, 2013 VA treatment record noted that the Veteran had not had any recent severe episodes of hypoglycemia, but he had two episodes of hypoglycemia in the past two weeks with symptoms of shaking and sweating. He self-treated his episodes by eating, drinking glucose drinks, or taking "tablets." His lows were suspected to be due to inconsistent carb intake and possibly due to Novolog dosing. He was noted to have numbness, pain, and tingling in his toes, as well as "some tingling in his fingers." In April 30, 2013, the Veteran reported one severe low blood sugar following a low carb supper. He was able to self-treat. The physician decreased the Veteran's insulin prescription. On May 30, 2013 VA primary care note included the Veteran's report of low blood sugars before supper, which he related to walking his dog 2 miles before supper without eating a snack. His A1c was at goal. He was to continue treatment with Novolog and Metformin. A June 12, 2013 VA primary care record noted that the Veteran's diabetes was "much improved!" VA mental health records included the Veteran's reports of an active lifestyle with kayaking, gardening, and walking his dog. This included a February 3, 2015 mental health record wherein he reported his increased physical activity, walking 2 miles per day. In May 2016, the Veteran participated in a VA peripheral neuropathy examination; however, the examiner limited the examination to the Veteran's lower extremities. A January 20, 2017 VA treatment record noted that the Veteran had neuropathy of the hands, legs, and feet. A February 20, 2018 record included the Veteran's complaint of pain in the right hand and both lower extremities due to neuropathy. He described "shooting" pain for the past 5 years. A March 9, 2018 record included the complaint of 8 out of 10 pain in his feet and hands from neuropathy. On November 23, 2019, the Veteran participated in VA diabetes and peripheral neuropathy examinations. His diabetes was managed by oral hypoglycemic agents and more than 1 injection of insulin per day. He did not require regulation of activities as part of the medical management of his diabetes. He visited his diabetic care provider for episodes of ketoacidoses or hypoglycemia less than 2 times per month. He had no hospitalizations for ketoacidosis or hypoglycemia in the prior 12 months. He had not had progressive unintentional weight loss and loss of strength due to his diabetes. The Veteran was also diagnosed with bilateral upper and lower extremity peripheral neuropathy. He reported developing pain and numbness in his feet in 1991 and bilateral hand numbness in 2000. His hands were painful, numb, and had decreased sensation. He was on Gabapentin and Cymbalta. He reported mild intermittent pain, mild paresthesias, and mild numbness of the bilateral upper extremities. He had decreased (4/5) grip strength bilaterally. He had normal deep tendon reflexes. He had decreased light touch sensation in the bilateral hands/fingers. He had decreased cold sensation in his hands. The examiner selected that the Veteran had moderate incomplete paralysis of the radial, median, and ulnar nerves. The March 2020 rating decision provided 40 percent (right upper extremity) and 30 percent (left upper extremity) ratings for the Veteran's upper peripheral neuropathy under diagnostic code 8613 for "all radicular groups." Turning to the Veteran's claim for a rating in excess of 20 percent for diabetes mellitus, the Board finds that an increased rating is not warranted. The criteria for ratings beyond 20 percent require regulation of activities. The medical evidence of record does not show that the Veteran requires regulation of activities for the medical management of his diabetes mellitus. His VA treatment records showed that his diabetes was treated with insulin and oral medication. He reported increased exercise during the period on appeal, with kayaking and walking his dog. Additionally, the Veteran and his representative have not provided any lay statements in support of his claim for an increased rating. Although not required for a 40 percent rating, the record also does not show hospitalizations for episodes of ketoacidosis or hypoglycemia during the period on appeal. Given the above, entitlement to a rating in excess of 20 percent for diabetes is not warranted. Regarding the Veteran's peripheral neuropathies and the indication that compensable complications of diabetes be evaluated separately, the Board will only provide additional benefits regarding the Veteran's upper extremities in this decision. An April 2003 rating decision granted entitlement to service connection for bilateral lower extremity peripheral neuropathy with 10 percent ratings. As the lower extremity peripheral neuropathies were separately compensably rated prior to the claim for an increased rating for diabetes on appeal, they are not considered as part of the diabetes claim (they are already separate). However, as his bilateral upper extremity peripheral neuropathies were granted during the period the Veteran's increased rating for diabetes was on appeal, they are to be considered as part of his increased rating claim. The RO granted the 40 percent (right) and 30 percent (left) ratings for his upper extremity peripheral neuropathies effective from January 20, 2017. The RO indicated that this was the first date that upper extremity peripheral neuropathy was shown. However, the diabetes increased rating is on appeal from March 14, 2013 and, as noted above, the Veteran has complained of peripheral neuropathy symptoms in his upper extremities since at least July 18, 2012 (and this record referenced a 2011 record of similar complaints). The record contains limited treatment records which addressed the severity of the Veteran's bilateral upper extremity peripheral neuropathy prior to the 2019 VA examination. The Veteran had been scheduled for prior VA examinations which were missed and rescheduled for 2019 and the 2016 examination only requested evaluation of the lower extremities. As such, the Board will apply the findings in the 2019 examination to the entire period on appeal. The RO has determined that the 2019 examination showed moderate incomplete paralysis of all radicular groups, warranting 40 percent (right) and 30 percent (left) ratings. See 38 C.F.R. § 4.124a, DC 8613. The Board finds that these ratings must be applied for the entire period on appeal, from March 14, 2013. 6. Entitlement to a 20 percent rating for bilateral diabetic retinopathy, prior to September 19, 2016, is granted. 7. Entitlement to a 10 percent rating, and no greater, for bilateral diabetic retinopathy, from September 19, 2016, is granted. The Veteran's bilateral diabetic retinopathy was initially appealed to the Board as noncompensably (zero percent) rated. A March 2020 rating decision increased the rating to 10 percent effective November 22, 2019. The claim for an increased/compensable rating for retinopathy was received on March 14, 2013. With this decision, the Board will provide an increased 20 percent rating from March 14, 2013 to September 19, 2016, and a 10 percent rating from September 2016. As with the other claims on appeal, the Veteran and his representative have not submitted substantive arguments related to his increased rating on appeal. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The Veteran's diabetic retinopathy is rated under DC 6040-6066. DC 6040 is for diabetic retinopathy, which does not have a specific listing for criteria, and is therefore considered under the General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. DC 6066 provides ratings based on corrected distance visual acuity. Prior to May 13, 2018, DC 6040 was not a separate diagnostic code. DC 6006 is for rating retinopathy or maculopathy. Under the former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009 which instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the revised criteria, DC 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. A January 29, 2013 VA primary care record, the Veteran denied recent vision changes. He reported a history of multiple laser treatments to his left eye due to diabetes. On evaluation he had ERM (epiretinal membrane or macular pucker) of the macula, left worse than right. Macular OCT (ocular coherence tomography) showed pseudo/lamellar hole in his left eye. The impression was of mild to moderate NPDR (nonproliferative diabetic retinopathy) of both eyes with no CSME (clinically significant macular edema) right eye and pseudo hole left eye secondary to chronic edema and/or ERM (multiple laser noted). He also had 2+ nuclear sclerotic cataracts and reported a glare when driving at night. His corrected vision was 20/25 right and 20/50+2 left. Under DC 6066, corrected distance vision of 20/50 and 20/40 warrants a 10 percent rating. An April 15, 2016 VA ophthalmology note included that the Veteran was seen for bilateral NPDR and left pseudo hole. He had worsening right eye cataracts. His corrected vision was 20/40-2 right and 20/50-2 left. An October 24, 2016 VA ophthalmology record noted that the Veteran underwent left eye cataract extraction and lens implant on September 19, 2016. He stated that "right after surgery" his visual acuity was clear, but it had gotten progressively blurrier in the last one week post-operation. His corrected vision was 20/30 right and (uncorrected) 20/40-1 left. His PCIOL was clear and centered, "however pseudo hole may be limiting visual potential." He had a slight increase in the thickness of his pseudo hole on OCT. Under DC 6066, corrected distance vision of 20/40 or better of both eyes warrants a noncompensable rating. The Veteran underwent right eye cataract surgery on January 20, 2017. On January 31, 2017, he was one week status post PCIOL right eye. He had no complaints and happy with his vision. His uncorrected vision 20/25 right and 20/30 left. On April 14, 2017, a VA treatment record included the Veteran's report of improved distance vision, but still not "perfectly clear." His corrected vision was 20/20 bilaterally. His macula showed a left blunted pseudo hole. He was assessed with pseudophakia (lens replacement from cataracts), mild NPDR, left pseudocoele, and dry eye syndrome. A July 28, 2017 record had similar findings, and listed his uncorrected distance vision as 20/30 bilaterally. A May 4, 2018 VA treatment record included findings of moderate NPDR of both eyes, pseudo hole left eye, and bilateral pseudophakia. His vision without correction was 20/30 right and 20/25-1 left. A February 6, 2019 VA optometry record included the Veteran's complaint of increased floaters in both eyes since cataract surgery, but no recent or acute changes. He also had increased tearing in both eyes when in windy environments. He denied eye pain. His uncorrected vision was 20/30 bilaterally. On evaluation, the Veteran had bilateral pinguecula, PCIOL, mild PCO (posterior capsular opacification) temporally, and anterior phimosis. He had a stable pseudo hole in his left macula, outer layers intact. The impression was of moderate NPDR, pseudocoele left eye, PVD (posterior vitreous detachment) both eyes, and pseudophakia both eyes. On November 22, 2019, the Veteran participated in a VA eye examination. diagnosed with mild NPDR without macular edema and pseudophakia of both eyes. He described a current "slight visual blur." He also reported a history of laser treatment on his retina performed by a retinal specialist, date unknown. His cataract surgery with intraocular lens implants was completed in 2016. His corrected distance vision was 20/40 bilaterally. The Veteran did not have diplopia. On slit lamp evaluation, the Veteran had PCIOLs well centered with clear capsules. His internal eye examination showed dot-blot hemes, and scattered microaneurysms of both macula and vessels. He also had scattered blot hemes of both peripheries. Visual field testing was performed, with some contraction of left down and down nasal fields. The examiner described this as "vague inferior missed points in the left eye." The Veteran did not have scotoma. The Veteran's cataracts with intraocular lens replacement did not cause visual impairment, "the lens implants are well centered, clear, and stable." The Veteran's "diabetic retinopathy seems to be responsible for [his] slight decrease in visual acuity and visual field defect." He had not had any incapacitating episodes in the prior 12 months. "Blurred distance vision with minimal improvement even with eyeglasses will impact Veteran's ability to see at greater distances." The examiner noted that cataracts have been shown to occur faster and earlier in life in those with diabetes, therefore the Veteran's pseudophakia was related to his diabetic retinopathy/diabetes. Visual field testing in conjunction with the November 2019 examination showed left total remaining visual field of 445 degrees. Divided by the eight meridians, the average contraction of his left eye was 55.625 degrees. Under DC 6080, remaining visual field of 46 to 60 degrees warrants a 10 percent rating, or the eye should be evaluated as having a visual acuity equivalent of 20/50. His right visual field testing showed total remaining visual field of 490 degrees. Divided by the eight meridians, the Veteran had an average contraction of 61.25. Under DC 6080, a compensable rating is not available. As noted above, the VA examiner noted that the Veteran's left visual field contraction was likely due to his diabetic retinopathy. The only visual field testing in the claims file are the November 2019 results; however, VA treatment records noted a pseudocoele and diabetic retinopathy during the entire appeal period (from March 14, 2013 to the present). The Board will apply the visual field findings from November 2019 for the entire period on appeal, thus providing a 10 percent rating for the entire period under DC 6080. As noted above, prior to the Veteran's left eye cataract surgery his corrected distance visual acuity warranted a 10 percent rating under DC 6066. Following cataract surgery on September 19, 2016, the Veterans corrected distance visual acuity improved, and a compensable rating was no longer warranted under DC 6066. The November 2019 examiner noted that the Veteran's cataracts was due, in part, to his diabetes. To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Thus, prior to September 19, 2016, a 20 percent rating was warranted for the Veteran's bilateral retinopathy with cataracts based on the combination of decreased visual acuity and visual field defect. From September 19, 2016, a 10 percent rating is warranted for bilateral retinopathy due to visual field defect. Additional increased staged ratings are not warranted. The record does not show that the Veteran has had incapacitating episodes under the former or revised criteria during the period on appeal. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for anxiety is remanded. The Veteran's VA treatment records include findings of dementia and Alzheimer's disease. A November 2010 VA mental health examination noted intact long-term recall, but mildly impaired short-term recall. An October 23, 2012 VA mental health record included the Veteran's report of "concentration difficulties." On February 23, 2017, the Veteran was seen by the VA memory clinic wherein he reported memory problems for 10 years, including forgetting worse and "where he is going." In April 2017, he reported occasionally being confused while driving, but he also refused to give up driving at the suggestion of the VA provider. On May 19, 2017, the Veteran scored very low on the MME (likely mini mental state examination) and was advised not to drive. He was very upset to receive a letter from the DMV that his license was suspended. The Veteran and his wife were adamant that he was capable of driving. The Veteran argued he simply did not do well taking tests. On May 8, 2018, the Veteran reported to mental health providers that he did not have Alzheimer's disease and that his "memory pill" was "making a difference." The DMV returned his driver's license by a November 7, 2018 mental health record. A May 12, 2019 VA diabetes treatment record noted the Veteran's history of dementia, without any recent changes in memory. He was on Donepezil for dementia. On November 23, 2019, the Veteran participated in a VA mental health examination. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The examiner selected that the veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress/symptoms controlled by medication. The Veteran was married and reported living in the same house since 2010. His wife corrected that they had moved from New York to Florida in 2012. He had a happy, stable relationship with his wife, with occasional bouts of yelling due to frustration. The couple remained social, including washing/waxing the car and going across the street to play cards the day before. He stated they also "ate out a lot" and had an "active life." He stated he did well with the cards, including paying attention, counting, and remembering what he picked up and put down. On mental status evaluation, the examiner noted the Veteran's memory and attention appeared intact"there was no evidence of the memory issues he reported occasionally experiencing and records were free of report of difficulty with memory with the exception of 'abnormal' findings in 20102 CT scans (2010 and 2017) were reported as 'normal.'" The Board notes that the VA treatment records included histories of dementia and Alzheimer's disease, and in 2017 the Veteran lost his license for a period due to providers' fears that he should not be driving due to his memory impairment. The 2017 records indicated the Veteran's memory tested poorly. The Veteran was not noted to have a memory impairment related to his service-connected adjustment disorder/anxiety disorder/PTSD in the 2019 examination. On remand, the Veteran should be afforded an additional VA mental health evaluation which addresses the severity and cause of the Veteran's memory impairment (if any). 2. Entitlement to total disability based on individual unemployability (TDIU) is remanded. As noted above, and in the prior 2019 Board remand, the Veteran's service treatment records indicate that he suffers from memory problems. The issue of entitlement to TDIU was found to have been reasonably raised by the record and the Board remanded so that the Veteran could submit a TDIU claim form, which would contain information on his prior employment and the date he was last employed. On April 9, 2020, the RO sent the Veteran a letter requesting that he submit a TDIU claim form. The Veteran did not respond to this request. During his November 2019 examination, the Veteran reported he "retired" in 2012 due to "physical reasons," nothing the neuropathy in his hands making him unable to tighten nuts and bolts, and his legs tiring easily and feeling tingly. As the Veteran's anxiety claim is being remanded for additional development, the Board will provide the Veteran with one last opportunity to submit a TDIU claim. The matters are REMANDED for the following action: 1. Provide the Veteran with a TDIU claim form and one last opportunity to submit information on his prior employment, education, and last employment date. 2. Schedule the Veteran for an updated VA mental health examination. The examiner must address whether the Veteran has memory impairments, and the severity of his memory impairments. This should include addressing the 2017 VA records related to memory testing. (Continued on the next page) Is it at least as likely as not (50/50 probability or greater) that the Veteran's memory impairment is a symptom of his service-connected adjustment disorder/anxiety disorder? A complete explanation must accompany the opinion. 3. After completing the development requested above, readjudicate the Veteran's claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.