Citation Nr: 21028741 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-21 410 DATE: May 11, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetic retinopathy is reopened. To that extent only, the appeal is granted. Entitlement to service connection for diabetic retinopathy is granted. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating higher than 20 percent for diabetes mellitus is denied. Entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the right lower extremity is denied. Entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the left lower extremity is denied. Entitlement to a rating higher than 10 percent for tinnitus is denied. Entitlement to a rating higher than 0 percent for bilateral hearing loss is denied. Entitlement to an effective date earlier than December 9, 2011, for service connection for diabetes mellitus is denied. Entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the right lower extremity is denied. Entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date earlier than December 29, 2014, for service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than December 29, 2014, for service connection for tinnitus is denied. REMANDED Entitlement to service connection for benign prostatic hyperplasia (BPH), also claimed as urinary tract infection is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An October 2012 rating decision denied service connection for diabetic retinopathy. 2. The Veteran did not perfect an appeal of the October 2012 rating decision. 3. The evidence received since the October 2012 rating decision is neither cumulative nor redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetic retinopathy. 4. The evidence is at least in equipoise regarding whether the Veteran has diabetic retinopathy related to service-connected diabetes mellitus. 5. Throughout the period of appeal, PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity. 6. Throughout the period of appeal, diabetes mellitus has required a prescribed oral hypoglycemic agent, but not regulation of activities. 7. Throughout the period of appeal, right lower extremity peripheral neuropathy symptoms have been wholly sensory. 8. Throughout the period of appeal, left lower extremity peripheral neuropathy symptoms have been wholly sensory. 9. Tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. 10. Throughout the period of appeal, the Veteran had, at worst, Level I hearing loss in the right ear and Level I hearing loss in the left ear. 11. VA received a claim for service connection for diabetes mellitus on December 9, 2011. 12. No communication earlier than December 9, 2011, from the Veteran may be reasonably construed to be a claim, formal or informal, for service connection for diabetes mellitus. 13. An October 2012 rating decision denied service connection for right and left lower extremity diabetic neuropathy. The Veteran was notified of the decision and of his appellate rights but did not appeal the denial of service connection for right and left lower extremity diabetic neuropathy. 14. VA received an application to reopen a previously denied claim for service connection for right and left lower extremity diabetic neuropathy on November 4, 2014. 15. VA received claims for service connection for bilateral hearing loss and tinnitus on December 29, 2014. 16. No communication earlier than December 29, 2014, from the Veteran may be reasonably construed to be a claim, formal or informal, for service connection for either bilateral hearing loss or tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetic retinopathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for diabetic retinopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.119, Diagnostic Code 7913. 5. The criteria for entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8621. 6. The criteria for entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8621. 7. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005). 8. The criteria for entitlement to a rating higher than 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 9. The criteria for entitlement to an effective date earlier than December 9, 2011, for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 10. The criteria for entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the right lower extremity, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 11. The criteria for entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the left lower extremity, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 12. The criteria for entitlement to an effective date earlier than December 29, 2014, for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 13. The criteria for entitlement to an effective date earlier than December 29, 2014, for service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1970. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of the claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetic retinopathy Service connection for diabetic retinopathy was originally denied in an October 2012 rating decision which found that the evidence did not show a currently diagnosed disability. Evidence associated with the claims file since the July 2008 RO decision includes additional lay statements, VA treatment records, and private treatment records. In particular, a March 2016 VA examination report contains a diagnosis of diabetic retinopathy of both eyes, which the provider opined was caused by service-connected diabetes. That evidence provides evidence of a current diagnosis of diabetic retinopathy and relates that disability to a service-connected disability. The credibility of the newly submitted evidence is presumed in determining whether or not it is material to warrant reopening a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the March 2016 examination report provides a current diagnosis of diabetic retinopathy and relates that disability to a service-connected disability, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the new evidence is also material. As new and material evidence has been received, the claim for service connection for diabetic retinopathy reopened. Service Connection In general, service connection may be established for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In that instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for diabetic retinopathy At a March 2016 VA examination, the examiner diagnosed diabetic retinopathy of both eyes, ischemic optic neuropathy of both eyes, and neoplasm of cornea of the left eye. It was noted that the Veteran was diagnosed with diabetic retinopathy in February 2016, ischemic optic neuropathy about January 2004, and neoplasm of cornea in February 2016. The examiner stated that the Veteran had mild diabetic retinopathy in both eyes caused by diabetes. At a June 2017 VA examination, the examiner stated that the Veteran had diabetic retinopathy as a complication of service-connected diabetes mellitus. In a February 2019 private treatment record, P.J.L., M.D., diagnosed mild nonproliferative diabetic retinopathy of both eyes, diabetes with ocular complications of both eyes, and post-inflammatory optic atrophy of the right eye (diabetic ischemic optic neuropathy). Based on all the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has diabetic retinopathy secondary to service-connected diabetes mellitus. Multiple examiners have diagnosed diabetic retinopathy, and the Marcy 2016 and June 2017 VA examiners specifically attributed the diagnosed diabetic retinopathy to service-connected diabetes mellitus. Taken as a whole, the evidence is at least in equipoise regarding whether currently diagnosed diabetic retinopathy was caused by service-connected diabetes mellitus. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran and find that entitlement to service connection for diabetic retinopathy is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 3. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) Psychiatric disabilities other than eating disorders are rated pursuant to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 0 percent rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted when there is 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, or symptoms controlled by continuous medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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 affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the rating formula are only examples, and evidence of those specific symptoms is not required to show that the Veteran is totally disabled. In rating a mental disability, VA is required to consider all symptoms that affect social and occupational functioning, and not limit consideration to those symptoms listed in the rating formula. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary consideration is whether the manifestations of the service-connected psychiatric disability result in a level of social and occupational impairment, regardless of whether the Veteran demonstrates the specific symptoms listed in the rating formula. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. A January 2016 private treatment record shows that the Veteran had delusions involving aliens, and humans not landing on the moon. The treatment provider stated that the examiner had no hallucinations, no rapid extreme cycling inappropriate moods, and no psychotic symptoms. The treatment provider stated that the Veteran was "clearly unemployable" and had poor attention, concentration, and decision making. There was no formal thought disorder. The Veteran experienced poor impulse control. There were no suicidal or homicidal ideations. Long term memory was intact, but short term memory was poor. At a September 2016 VA examination, the examiner performed a symptom validity screening measure which indicated that the Veteran was highly likely to be exaggerating and augmenting his symptoms. The examiner also noted that the Veteran reported information that was at variance with prior information provided. The Veteran had been married for 50 years, and the Veteran stated that he had a temper. He had a good relationship with his three adult children. The Veteran did not have any friends, but he attended church weekly. The Veteran did not like going to crowded venues. The Veteran reported that he experienced anxiety and panic-like attacks several times a week. He had nightmares. He had a depressed mood and decreased concentration. The Veteran reported beliefs involving aliens, and about humans not landing on the moon. The examiner found that the Veteran was oriented to person, place, time, and purpose of visit. The Veteran appeared alert, appropriately attired, and had fair grooming. Speech was within normal limits. The Veteran's thought process was generally goal-directed. His mood was anxious and nervous. No suicidal or homicidal ideation was evidenced at that time. Memory, insight, and judgment were fair. The examiner reiterated that the Veteran's score on a symptom validity screening measure indicated a strong likelihood of over-reporting symptoms. More specifically, the examiner found that the Veteran demonstrated a discrepancy between observed and reported symptoms. An April 2017 private treatment record shows that the Veteran experienced some paranoid delusions involving aliens, and humans not landing on the moon. The treatment provider found no hallucinations, no cycling of inappropriate moods, and no psychotic symptoms. The examiner felt that the Veteran was "clearly unemployable" and exhibited poor attention, poor concentration, and poor decision making. The examiner then stated that the Veteran had no hallucinations nor delusions, some paranoid thinking, no grandiose thinking, no formal thought disorder, and poor impulse control. There were no suicidal or homicidal ideations, plans, gestures, or attempts. Long term memory was intact but shot term memory was poor. At an August 2017 VA examination, the examiner reviewed the report of the September 2016 VA examination conducted by a different examiner, in which objective screening was conducted to assess for response validity. The examiner commented the results indicated invalid patient responding. In light of the September 2016 screening results, the August 2017 VA examiner also administered objective validity testing, and the results "overwhelmingly indicate[d] over-reporting of symptoms." The examiner commented that a review of the medical records did not identify validity testing related to mental health assessments other than the validity testing performed by the present examiner and the September 2016 examiner. At the examination, the Veteran reported that he had good relationships with his three children. He got annoyed with his spouse. He did not have any friends, and he did not like going to crowded venues. The Veteran retired six years previously after working as a contractor for 30 years. The examiner found that the Veteran was oriented to all spheres, and the Veteran's reported symptoms were not congruent with observation. The Veteran's speech was of normal rhythm and content. The Veteran maintained a focus and responded appropriately to questions. There was no evidence of a formal thought disorder. Insight and judgment were grossly intact. No remoted memory impairments were noted. Active suicidal ideation, planning, and intent was denied. On review of all of the evidence of record, the Board finds that a rating higher than 50 percent is not warranted. The Board notes that a 70 percent rating is provided for 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The Board finds that the competent medical evidence of record, to include the VA psychiatric examination reports, does not show the Veteran had any speech issues, continuous panic attacks, spatial disorientation, actual neglect of personal hygiene, or an inability to maintain effective relationships, as demonstrated by a good relationships with his adult children. The Board recognizes that the January 2016 and April 2017 private treatment records suggest that the Veteran experiences symptoms of a greater severity than those represented by a 50 percent rating; however, the private treatment records appear to be a recounting of the Veteran's self-report of symptoms. The evidence does not indicate that the private examiner performed objective screening to assess for the Veteran's response validity. Objective validity testing performed by the September 2016 and August 2017 VA examiners indicated that the Veteran overreported his symptoms. In light of the objective validity testing results as reported by the VA examiners, and as the private treatment provider is not shown to have performed objective validity testing, the Board finds the private treatment records to be of less persuasive weight and outweighed by the other evidence of record. The Veteran has been verbally aggressive with others, but those altercations have not escalated to periods of violence. Medical records consistently show that the Veteran was appropriately dressed and adequately groomed, cooperative and oriented, and with normal speech, thought process, and judgment. No contemporaneous hallucinations have been reported. The Board places great weight on the VA examination reports, as they were created by objective medical personnel in the process of providing professional care to the Veteran and contained the results of objective validity testing. Taken as a whole, the Board finds that a review of the medical records shows an overall condition that more nearly approximates the criteria for a 50 percent rating. Considering the totality of the Veteran's symptomatology, the Veteran's disability has not shown to manifest to the severity required for the next higher rating of 70 percent. The Board finds that the Veteran's psychiatric symptoms more nearly approximate a condition that is productive of occupational and social impairment with reduced reliability and productivity. The Board finds that the Veteran's irritability did not rise to the level of being a persistent danger of hurting himself or others, so as to support any higher rating. The Board finds that the evidence does not show deficiencies in most areas. The Veteran maintains social relationships. While he was shown to have delusions regarding aliens, and humans not landing on the moon, those are not shown to result in social or occupational impairment. No hallucinations were shown. The Board has additionally considered the Veteran's statements regarding the severity of the psychiatric symptoms throughout the period of appeal. The Veteran is competent to report the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, objective validity testing has shown that the Veteran overreports his symptoms. Therefore, the opinions and observations of the Veteran do not meet the burden for even higher ratings imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disability throughout the appeal. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to a rating higher than 20 percent for diabetes mellitus Under Diagnostic Code 7913, a rating of 20 percent is warranted for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when the diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. Compensable complications of diabetes are to be separately rated unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. The definition of regulation of activities in the rating criteria for diabetes mellitus is the avoidance of strenuous occupational and recreational activities, and applies to the regulation of activities criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Moreover, because of the successive nature of the rating criteria, such that the rating for each higher rating includes the criteria of each lower rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant a 40 percent rating. Tatum v. Shinseki, 23 Vet. App. 152 (2009). In addition, a 40 percent rating under Diagnostic Code 7913 requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360 (2007). At a June 2017 VA examination, the examiner diagnosed diabetes mellitus. The Veteran took a prescribed oral hypoglycemic agent daily. The examiner specified that the Veteran did not require regulation of activities as part of the medical management of diabetes. The Veteran visited a diabetic care provider for episodes of ketoacidosis or hypoglycemia less than two times per month. There had been no hospitalizations over the past 12 months for episodes of ketoacidosis or hypoglycemic reactions. The Veteran had not had progressive unintentional weight loss or loss of strength attributable to diabetes. The examiner indicated that the Veteran had diabetic peripheral neuropathy, diabetic retinopathy, and erectile dysfunction as complications of diabetes. The examiner opined that the Veteran's diabetes mellitus did not impact the ability to work. Based on a careful review of all of the evidence, the Board finds that the Veteran's diabetes mellitus does not warrant a higher 40 percent rating. The Veteran requires use of a prescribed hypoglycemic medication, but he does not require regulation of activities due to diabetes. Although the Veteran takes medications, the rating criteria require that the Veteran's activity have restrictions as a result of diabetes to warrant a higher rating. The evidence does not demonstrate that the Veteran's diabetes mellitus has reached that level of severity. The Veteran has not asserted that diabetes mellitus has caused him to restrict his activities, and a VA examiner has specifically opined that the Veteran's diabetes mellitus did not require regulation of activities as part of the medical management of diabetes. Therefore, the Board is finds that the Veteran's diabetes mellitus is no more than 20 percent disabling. The Veteran has not provided evidence of any further unaddressed complications related to diabetes mellitus, beyond those already considered. Within this decision service connection has been granted for diabetic retinopathy, and separate ratings have been assigned for erectile dysfunction and peripheral neuropathy of the lower extremities. The Board finds that there are no further unaddressed complications of diabetes that require a further separate rating. The Board finds that the preponderance of the evidence is against the claim for any other increased or separate rating and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the right lower extremity 6. Entitlement to a rating higher than 20 percent for diabetic peripheral neuropathy of the left lower extremity The Veteran's peripheral neuropathy of the lower extremities has been rated 20 percent for each extremity pursuant to Diagnostic Code 8621. Under Diagnostic Code 8621, complete paralysis of the external popliteal nerve (common peroneal) warrants a 40 percent rating. A 30 percent rating is warranted for severe incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis warrants. A 10 percent rating is warranted for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Board notes that the terms slight, moderate, and severe are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. At a June 2017 VA examination, the examiner diagnosed diabetic peripheral neuropathy of the bilateral lower extremities. The Veteran reported experiencing constant numbness, tingling, and burning of his feet. The examiner indicated that the Veteran experienced constant moderate pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness of the bilateral lower extremities. Muscle strength testing and deep tendon reflex testing produced normal results for both lower extremities. There was no muscle atrophy or trophic changes of either lower extremity. The examiner specified that there was no paralysis, either complete or incomplete, of the Veteran's nerves. The examiner stated that there was no objective evidence of paralysis. During the course of the claim, the objective evidence shows the Veteran's nerve involvement has been wholly sensory. Motor strength has been normal, and deep tendon reflex testing has been normal, both of which were noted on the VA examination of record. The symptoms have been wholly sensory and did not demonstrate any greater motor weakness, trophic changes, or other types of more severe symptoms that would warrant any rating higher than 20 percent. Significantly, the June 2017 VA examiner specified that there was no paralysis of the Veteran's nerves. Again, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Board finds that the preponderance of the evidence is against the assignment of a rating higher than the currently assigned 20 percent rating for each lower extremity. In so finding, the Board has considered the severe pain, numbness, and tingling that the Veteran reported experiencing in the bilateral lower extremities. However, as the objective evidence shows that the nerve involvement is wholly sensory, no rating higher than 20 percent is warranted for the peripheral neuropathy symptoms of the lower extremities. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Entitlement to a rating higher than 10 percent for tinnitus The Veteran's tinnitus was assigned a 10 percent rating, effective December 29, 2014. He seeks a higher rating under Diagnostic Code 6260. Effective June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent rating is assigned for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); 68 Fed. Reg. 25822 (June 2003); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). That, however, does not amount to a liberalizing change, but rather a clarification of existing law. In the case currently on appeal, a 10 percent rating has been assigned for service-connected tinnitus. The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003, amendment to the rating code. Thus, a 10 percent rating is the maximum rating assignable for bilateral tinnitus. An increased schedular rating or assignment of a compensable rating for each ear is not available. Under those circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 8. Entitlement to a rating higher than 0 percent for bilateral hearing loss Ratings for hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In the cases with exceptional patterns of hearing loss, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. At a June 2017 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 40 70 70 51 LEFT 30 45 70 75 55 Maryland CNC word recognition was 94 percent in the right ear and 96 percent in the left ear. During the examination, the audiologist described the functional effects of the Veteran's hearing loss on daily activities. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Specifically, the Veteran stated that his children got angry when they had to yell at him. The Veteran's children had to repeat everything they said. The Veteran stated that he had to blast the volume of the television in order to hear it. The Board notes that neither ear displays an exceptional pattern of hearing loss by regulation. Thus, Table VI will be used to determine the appropriate rating. 38 C.F.R. § 4.86(a). Applying the results for the Veteran's right ear to Table VI shows that he had, at worst, Level I hearing loss, as shown by the VA examination results. Under Table VI, the left ear had, at worst, Level I hearing loss, as shown by the VA examination results. Applying Level I for the right ear and Level I for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss. However, it must be emphasized that the assignment of ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, in this case, a lay opinion falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently rated, while he is competent to report symptoms such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage rating because such an opinion requires medical expertise and training in evaluating hearing impairment, which he does not possess, and the use of audiometric equipment. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Based upon the results from the VA examination, the Board finds that the criteria for a higher rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 4.85, 4.86. The Board finds that the preponderance of the evidence is against the claim for a higher rating, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claim or application is defined by VA regulation as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action, indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran's separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). VA has a duty to maximize a claimant's benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, a case encompasses all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A claim for benefits remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009). If a claim is left pending without a final adjudication, the claim may be addressed when a subsequent claim is adjudicated by the VA, in which case the effective date for any resulting award of benefits will be the effective date applicable to the earlier claim. Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009); Myers v. Principi, 16 Vet. App. 228 (2002). 9. Entitlement to an effective date earlier than December 9, 2011, for service connection for diabetes mellitus The Veteran filed a VA Form 21-526, Veteran's Application for Compensation and/or Pension, on which he initiated a claim for service connection for diabetes mellitus. That form is date stamped as received by VA on December 9, 2011. An October 2012 rating decision established service connection for diabetes mellitus, and assigned an effective date of December 9, 2011. On review of all evidence, both lay and medical, the Board finds than an earlier effective date is not warranted. The AOJ's assignment of the December 9, 2011, effective date is based on the date of receipt of the Veteran's claim of entitlement to service connection for diabetes mellitus. There is no dispute as to the date of receipt of that claim. No prior VA examiner had identified diabetes mellitus as a result of the Veteran's service. The Board finds that there is no evidence of record prior to December 9, 2011, that can be interpreted as a claim, formal or informal, for service connection for diabetes mellitus. That date of receipt of the claim was more than one year following separation from service. Therefore, the appropriate effective date is the date of receipt of the claim on December 9, 2011. The Board can find no basis for the assignment of any earlier effective date. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date for service connection for diabetes mellitus. Therefore, the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 10. Entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the right lower extremity 11. Entitlement to an effective date earlier than November 4, 2014, for service connection for diabetic peripheral neuropathy of the left lower extremity An October 2012 rating decision denied service connection for diabetic peripheral neuropathy of the right and left lower extremities. The Veteran was notified of the October 2012 decision and of his appellate rights but did not initiate an appeal of those issues. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to that claim. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date of the date of the prior claim is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Notably, no allegation of a clear and unmistakable error has been raised with respect to the October 2012 rating decision. VA received a VA form 21-526EZ on November 4, 2014. On that form, the Veteran initiated a claim for an increased rating for service-connected diabetes mellitus. In the course of developing the claim for a higher rating for diabetes, service connection was granted for right and left lower extremity diabetic peripheral neuropathy in an August 2015 rating decision, and assigned an effective date of November 4, 2014. There is no communication subsequent to the October 2012 final denial of service connection and prior to November 4, 2014, that constitutes a claim for benefits for either service connection for diabetic peripheral neuropathy of the right and left lower extremities, or for a higher rating for diabetes mellitus. The Board is sympathetic to the Veteran's situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. There is no claim for service connection for diabetic peripheral neuropathy after the October 2012 final rating decision and before November 4, 2014. Thus, the Board finds that November 4, 2014, the date of receipt of the claim following a previous final denial of service connection for diabetic peripheral neuropathy, is the appropriate effective date for service connection as that is the date of claim following a final disallowance of the prior claims for service connection. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, and because clear and unmistakable error has not been alleged in the October 2012 rating decision, the Board finds that the claim for an earlier effective date must be denied. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 12. Entitlement to an effective date earlier than December 29, 2014, for service connection for bilateral hearing loss 13. Entitlement to an effective date earlier than December 29, 2014, for service connection for tinnitus The Veteran filed a VA form 21-526EZ on which he initiated claims for service connection for bilateral hearing loss and tinnitus. This form is date stamped as received by VA on December 29, 2014. A June 2015 rating decision established service connection for bilateral hearing loss and tinnitus, effective December 29, 2014. On review of all evidence, both lay and medical, the Board finds than an earlier effective date is not warranted. The AOJ's assignment of the December 29, 2014, effective date is based on the date of the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus. There is no dispute as to the date of receipt of that claim. No prior VA examiner had identified bilateral hearing loss or tinnitus as a result of the Veteran's service. The Board finds that there is no evidence of record prior to December 29, 2014, that can be interpreted as a claim, formal or informal, for service connection for either bilateral hearing loss or tinnitus. That date of receipt of the claim was more than one year following separation from service. Therefore, the appropriate effective date is the date of receipt of the claim on December 29, 2014. The Board can find no basis for the assignment of any earlier effective date. Accordingly, the Board finds that the preponderance of the evidence is against the claims for an earlier effective dates for service connection for bilateral hearing loss and tinnitus. Therefore, the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for benign prostatic hyperplasia (BPH), also claimed as urinary tract infection is remanded. At a December 2015 VA examination, the examiner diagnosed BPH. The examiner opined that the Veteran's BPH was less likely than not proximately due to or the result of the service-connected diabetes. The examiner stated that there was no evidence that diabetes causes BPH. No further rationale was stated to support the opinion. At an April 2020 VA examination, the examiner opined that the Veteran's BPH was less likely than not incurred in or caused by the Veteran's service. The examiner explained that there was no evidence to support the assertion that the Veteran's BPH was related service, as the service medical records were silent for signs, symptoms, or diagnoses of BPH. The examiner explained that the condition did not become manifest within an appropriate timeframe of separation from service. No further rationale was stated to support the opinion. The Board finds that the rationale given by the VA examiners to support the opinions is incomplete. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Remand is necessary for an adequate etiology opinion regarding BPH. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran's claim for a TDIU is inextricably intertwined with the issue of entitlement to service connection for BPH. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). A rating also needs to be assigned for diabetic retinopathy. Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records and associated them with the claims file. 2. Schedule the Veteran for a VA prostate examination conducted by an appropriate examiner to assist in determining the nature and etiology of the claimed prostate disability and any relationship to active service. The examiner must review the record and should note that review in the report. The examiner should diagnose all prostate disabilities found. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any identified prostate disability had its onset during active service or is related to any incident of service. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any identified prostate disability is due to, caused by, or the result of service-connected diabetes and the other service-connected disabilities. The examiner should opine whether it at least as likely as not (50 percent probability or greater) that any identified prostate disability has been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected diabetes and the other service-connected disabilities. If it is determined that there is another more likely etiology for any identified prostate disability, that should be stated. A complete rationale for all opinions expressed should be clearly provided. The examiner must consider the Veteran's statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.