Citation Nr: 21031432 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-12 180 DATE: May 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating in excess of 10 percent for type II diabetes mellitus prior to November 19, 2018, is denied. However, a higher 20 percent rating for the type II diabetes mellitus, though no greater, is granted from November 19, 2018 onwards. Entitlement to an initial rating in excess of 70 percent for generalized anxiety disorder with unspecified depressive disorder is denied. The rating reduction for prostate cancer from 100 to 60 percent as of June 1, 2018 was proper. REMANDED Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FCT 1. It is just as likely as not the Veteran's bilateral (right and left ear) hearing loss is the result of hazardous noise exposure and consequent injury (acoustic trauma) during his military service, also that his tinnitus onset during his service. 2. Prior to November 19, 2018, his type II diabetes mellitus was manageable by restricted diet only and did not require use of insulin or oral hypoglycemic agent. 3. Since November 19, 2018, his type II diabetes mellitus has not required one or more daily injection of insulin. 4. Throughout the period on appeal, the Veteran's generalized anxiety disorder with unspecified depressive disorder has caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 5. The discontinuance of the 100 percent rating for the Veteran's prostate cancer is not a formal rating reduction, per se, as the "reduction" instead was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528. 6. The procedural requirements of 38 C.F.R. § 3.105(e) were properly and appropriately completed. 7. There is no recurrence or metastasis of prostate cancer or therapeutic treatment; the Veteran is in receipt of the maximum rating for voiding dysfunction as a result of his prostate cancer residuals; and there is no renal dysfunction. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Prior to November 19, 2018, the criteria are not met for an initial rating higher than 10 percent for the type II diabetes mellitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, DC 7913. 3. Since November 19, 2018, the criteria are met for a higher 20 percent rating, though no greater, for the type II diabetes mellitus. Id. 4. The criteria are not met for entitlement to an initial rating higher than 70 percent for the generalized anxiety disorder with unspecified depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, DC 9413. 5. The criteria are not met for a rating higher than 60 percent for the prostate cancer since the effective date of the reduction, June 1, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1968. This appeal to the Board of Veterans' Appeals (Board) is from January and April 2016 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified in support of these claims during a "virtual" tele-conference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection also will be presumed for certain "chronic diseases", including tinnitus and sensorineural hearing loss (since organic diseases of the nervous system), if they manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran's discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that the acoustic trauma that he sustained in service caused his bilateral hearing loss. During a December 2015 VA examination, he reported being exposed to artillery, explosion and helicopter noise while serving in Vietnam. Post service, he worked in electrical construction, but he stated there was not much noise and that, if he was in a noisy environment, he used ear protection. Recreational noise includes target practice at a range and ear protection is required. The evidence of record confirms a ratable bilateral (left and right ear) hearing loss disability for VA compensation purposes since VA audiological testing in December 2015 confirmed the Veteran has sufficient hearing loss in each ear to meet the threshold minimum requirements of 38 C.F.R. § 3.385. According to this VA regulation, a ratable hearing loss disability for VA compensation purposes requires an auditory threshold of 40 decibels or greater in one of the specified frequencies of 500, 1000, 2000, 3000 or 4000 Hertz; or at least three of these specified frequencies showing an auditory threshold of 26 decibels or higher; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The Veteran's hearing loss in both ears exceeded these thresholds during the December 2015 VA audiological examination. During that VA audiological examination in December 2015, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 65 80 LEFT 20 20 70 70 100 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. The Veteran, therefore, has a current ratable hearing loss disability as defined by VA regulation namely, § 3.385. Consequently, resolution of this appeal turns instead on whether there is the required attribution of his current bilateral hearing loss disability to his service, and especially to the noise exposure and consequent injury (acoustic trauma) he claims to have sustained during his time in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's DD Form 214 list his military occupational specialty (MOS) as Light Weapons Infantryman. His DD Form 215 shows that he was awarded the Combat Infantryman Badge (CIB). He served in the Army Infantry Air Helicopter Unit and was a Squad Leader in Vietnam. He did 74 missions and was exposed to artillery, explosions, and helicopter noise, just as he alleges. Thus, there is high probability of hazardous noise exposure during his time in service, including since he additionally alleges that he was not provided hearing protection. Therefore, the Board concedes there was relevant injury during his service especially given his duties and responsibilities in that capacity, which included combat. See 38 U.S.C. § 1154(a) (requiring consideration of the circumstances, conditions, and hardships of a Veteran's service). Moreover, in Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012), the Federal Circuit Court held that the combat presumption contained in 38 U.S.C. § 1154(b) [and by extension in the implementing VA regulation, 38 C.F.R. § 3.304(d)] not only applied to a combat injury, but also to the consequences of that injury, at least in service. See Reeves, 682 F.3d at 999 (holding that the Board was required to apply the § 1154(b) presumption to the Veteran's claimed acoustic trauma during service and to the separate question of whether he suffered permanent hearing loss while on active duty). The December 2015 VA examiner that confirmed the Veteran has sufficient hearing loss in each ear to be considered a ratable disability according to § 3.385 additionally concluded, however, that it is less likely than not the Veteran's bilateral hearing loss is related to the acoustic trauma he sustained in service. This VA examiner reasoned that the Veteran's hearing was within normal limits in both ears on entrance in February 1966 and at separation January 1968, with no threshold shifts, citing audiograms from his service treatment records (STRs). But the Board finds that the reasoning employed by that December 2015 VA examiner in formulating her opinion is flawed and, consequently, her opinion ultimately has less probative weight. Notably, in explaining the underlying basis of her unfavorable nexus opinion, this VA examiner cited hearing acuity within normal limits during the Veteran's service. However, VA regulation does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing during service or even during the one-year presumptive period following service for sensorineural hearing loss, especially. Hensley v. Brown, 5 Vet. App. 155; 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection). Service connection is permissible for a disability initially diagnosed after service if the evidence, including that pertinent to service, shows the disability was incurred in service. 38 C.F.R. § 3.303(d). In emphasizing the Veteran had normal hearing acuity in both ears when it was measured during his service, the December 2015 VA examiner apparently is discounting the notion of "delayed-onset" hearing loss. But, if this is indeed the underlying basis of her opinion, there was not the required level of explanation to rely on this conclusion such as to the study done by the Institute of Medicine (IOM) in 2005 that often is cited in these type of cases for this proposition. Also consider that, in a precedent case, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) highlighted the apparently contradictory findings regarding "delayed-onset" hearing loss in the IOM report. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, the IOM report concludes, in part, that there is not sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicates "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure", and that "definitive studies to address this issue have not been performed." In February 2018, the Veteran submitted a supporting written statement from a private audiologist. This audiologist provided an opinion that the Veteran's bilateral hearing loss was caused by or a result of high-level exposure from military occupation with helicopter live action in Vietnam, including gun fire, grenades, and tanks with no hearing protection. Ultimately, the Board finds that the February 2018 statement from this private audiologist, along with the Veteran's lay statements concerning the circumstances of his service and his report of an in-service onset, including in relation to his combat service in Vietnam, are as probative as the December 2015 VA medical opinion conversely against the claim, if not more probative. Accordingly, resolving this reasonable doubt in his favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus, like his bilateral hearing loss, onset during his service and is the result of the acoustic trauma he sustained during his service, including while engaged in combat in Vietnam. To reiterate, his SPRs confirm he was assigned to an infantry helicopter unit of the United States Army and served in combat in Vietnam. In considering the evidence of record under the laws and regulations pertinent to this claim, the Board concludes that the Veteran also is entitled to service connection for tinnitus. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran's statement into question for the audiologist. Accordingly, lay testimony is competent to establish the presence of tinnitus and, if the lay testimony is also credible, service connection for tinnitus may be granted. Charles, 16 Vet. App. at 374 (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In this case, the competent evidence of record shows current complaints of tinnitus. Additionally, the Veteran avers that his tinnitus started during his service. The December 2015 VA examiner provided an opinion that the Veteran's tinnitus was less likely than not caused by or a result of miliary noise exposure. However, during that VA examination, the Veteran described an incident in basic training when a tank came from behind and shot over his head. He stated his ears were ringing after that incident. His lay testimony regarding the inception of his tinnitus during his service is credible. In light of his credible lay testimony concerning this, the Board could remand this claim for another medical opinion regarding the origins of this disease, particularly in terms of whether it started during the Veteran's service. However, because his lay testimony that he has experienced tinnitus since his service is found credible, the Board concludes that a remand is not necessary. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, the Veteran's competent and credible therefore probative lay testimony provides an adequate basis on which to grant service connection for tinnitus. In this regard, the Veteran has reported the onset of his tinnitus during his service and continuing in the years since and that it is a result of military acoustic trauma, including in combat in Vietnam. See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). His testimony is consistent with evidence showing extensive noise exposure in service and in combat. During the December 2015 VA examination, the Veteran reported military noise exposure from aircraft, helicopter engines, and gunfire. He denied history of significant civilian occupational noise exposure. The Board accordingly finds that the Veteran sustained acoustic trauma in service since consistent with the circumstances of his service as a light weapons infantryman in the Army. 38 U.S.C. § 1154(a) and (b); 38 C.F.R. § 3.304(d). Accordingly, based on the evidence of record, the Board finds his lay statements are credible as to when his tinnitus began. Moreover, while there is no medical evidence of record etiologically linking his tinnitus to his military service, his statements alone may be considered competent and credible evidence to establish this necessary correlation ("nexus"). Accordingly, and especially when giving him the benefit of the doubt, service connection for his tinnitus is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary irrespective of whether an initial or established rating. 3. Entitlement to an initial rating higher than 10 percent for type II diabetes mellitus. In January 2016, the RO granted service connection for type II diabetes mellitus and assigned an initial 10 percent rating for it under DC 7913 retroactively effective as of November 4, 2014. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial rating claim, the Board will consider evidence of symptomatology from the date the claim was filed. 38 C.F.R. § 3.400(o). Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). 82 Fed. Reg. 50806 (Nov. 2, 2017). Because this increased rating claim stems from the claim that was filed in November 2014, the Board is required to consider the claim in light of both the former and revised schedular criteria to determine whether a higher rating is warranted for the disability. However, the former and revised criteria do not differ in substance. Under the version of Code 7913 in effect prior to December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring 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, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. Under the version of Code 7913 which became effective on December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id., at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction 'and' is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id., at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). On a January 2016 Disability Benefits Questionnaire (DBQ), it was noted that the Veteran did not require regulation of activities as part of medical management of his diabetes mellitus. It was also noted that the frequency of his diabetic care is less than twice a month for ketoacidoses and/or hypoglycemic reactions, and that he had not had any hospitalization for hypoglycemic reactions in the past 12 months. He did not have progressive unintentional weight loss or progressive loss of strength. He did not have recognized complications of diabetes mellitus. VA treatment records show the Veteran's diabetes mellitus did not require treatment and was primarily managed by diet until November 2018, when he was prescribed Metformin on November 19, 2018. An April 2019 DBQ prepared by the Veteran's primary care physician notes diagnoses of type II diabetes mellitus and diabetic neuropathy. It indicates that the Veteran's diabetes is managed by restricted diet and prescribed oral hypoglycemic agent(s) as well as regulation of activities was required as part of medical management of diabetes. It was also noted that the frequency of his diabetic care is less than twice a month for ketoacidoses and/or hypoglycemic reactions, and that he had not had any hospitalization for hypoglycemic reactions in the past 12 months. He did not have progressive unintentional weight loss or progressive loss of strength. This commenting physician noted that the Veteran had erectile dysfunction and intermittent neuropathy due to his diabetes mellitus. As to the functional impact, the examiner stated neuropathic pain could affect the Veteran's ability to concentrate and tolerate an 8-hours' workload. During his February 2021 hearing before this Board, the Veteran testified that his diabetes medication was increased about two months earlier (in the last 60 days) but also that he admittedly is not on insulin. He added that his doctor advised to exercise (walk, etc.), so to increase his activity rather than conversely regulate it. Thus, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent for the type II diabetes mellitus prior to November 19, 2018, or for a rating greater than 20 percent thereafter under both the former and revised criteria. As already explained, to warrant a 20 percent rating (notably under both the former and revised regulations), prescription of insulin and restricted diet or an oral hypoglycemic agent and restricted diet is required. Prior to November 19, 2018, the evidence of record shows that the Veteran's type II diabetes mellitus did not require insulin or hypoglycemic agent, and he readily conceded as much during his recent February 2021 hearing. For example, VA clinical records dated from 2013 to November 2018 do not indicate that his diabetes treatment required insulin or hypoglycemic agent. The January 2016 VA DBQ report shows that his diabetes treatment required a restricted diet. The examiner indicated the Veteran's diabetes treatment did not require insulin, oral medications, or restricted activities. He also had no episodes of hypoglycemia or ketoacidosis. The examiner further indicated the Veteran's diabetes did not impact his ability to work. Thus, prior to November 19, 2018, an initial rating higher than 10 percent is not warranted. Since November 19, 2018, the Veteran's diabetes has required an oral glycemic agent (namely, Metformin) and restricted diet for control or management. A November 2018 VA primary care note affirms he was placed on oral hypoglycemic medication (i.e., Metformin) on November 19, 2018. Therefore, the Board finds that he is entitled to a higher 20 percent rating for his diabetes as of that date November 19, 2018, when he first received prescription of this medication, so in addition to the dieting already being utilized as another modality of treatment or management of his diabetes. To warrant an even greater 40 percent rating, however (under both the former and revised regulations), there must be prescription of insulin, restricted diet, and regulation of activities, and the Veteran does not meet all these requirements. Moreover, all these requirements must be met to warrant assigning this even higher rating given the successive nature of the rating criteria in DC 7913. That is to say, the evidence of record shows the Veteran's diabetes has not required the collective use of insulin, restrictive diet, and the regulation of activities at any time during the entire appeal period, so either prior to or since November 19, 2018. VA clinical records do not indicate that his diabetes has required the use of insulin, nor has he contended it has (in fact, to the contrary, he readily admits that it has not). On the April 2019 DBQ, a medical provider indicated the Veteran required regulation of activities as defined as avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes. But the evidence of record demonstrates that his diabetes treatment does not require utilization of insulin. Thus, a rating in excess of 20 percent is not warranted under the version of DC 7913 in effect prior to December 10, 2017 or under the revised version that took effect on December 10, 2017. The Board also points out that the Veteran already has established his entitlement to service connection additionally for erectile dysfunction (ED), status post prostatectomy, so as a residual of (i.e., associated with) his prostate cancer. He has a 0 percent (noncompensable) rating for this complication of that cancer, but he also resultantly is receiving special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. A compensable rating is not warranted as there is no evidence of penile deformity, meaning more so in the physical sense. 38 C.F.R. § 4.115b, DC 7522. Also, although there is suggestion of diabetic peripheral neuropathy of his left and right lower extremities, there are separate claims in this appeal for this other impairment, and these claims are being remanded back to the RO for further development and consideration. 4. Entitlement to an initial rating higher than 70 percent for generalized anxiety disorder with unspecified depressive disorder. In January 2016, the RO granted service connection for generalized anxiety disorder and assigned an initial 70 percent rating for the disability retroactively effective from November 25, 2013. In April 2016, the RO recharacterized the disability as generalized anxiety disorder to include depressive disorder but confirmed and continued the 70 percent rating for this disability. In March 2019, the RO yet again recharacterized the disability this time as generalized anxiety disorder with unspecified depressive disorder but again confirmed and continued the 70 percent rating for this disability. The rating for the Veteran's generalized anxiety disorder with unspecified depressive disorder has been assigned pursuant to 38 C.F.R. § 4.130, DC 9413, of the General Rating Formula for Mental Disorders other than eating disorders. Under this General Formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The examiner's assessment of the severity of a condition is not dispositive of the evaluation issue; rather, the examiner's assessment must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The January 2016 report of VA mental disorders DBQ reflects an assessment that the Veteran's mental diagnosis was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran complained of anxiety, irritability, poor sleep, depressed mood, social isolation, tearfulness, diminished interest in previously engaged activities and suicidal ideation. He denied suicidal plant or intent. He reported that most of his social contacts were from work and there was no social activity outside of work. He had a cousin within whom he was close. He had a long employment history as an electrician and union field representative and was currently retired since 2005. He played golf and went fishing. The examiner observed the Veteran had been on medication for sleep for over 25 years and was also on an anti-depressant. The examiner indicated the Veteran had symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. On behavioral observations the Veteran's mood was anxious and his affect was congruent with wringing of his hands and tearfulness. His thought process was linear. He denied homicidal ideation. He was capable of managing his financial affairs. VA treatment records from January 2016 through February 2019 show the Veteran seeking psychiatric treatment for management of anxiety and depression. He complained of nightmares and sleep difficulty. He denied suicidal or homicidal ideation. He reported he got along with well with his wife, went to movies with friends, and spent Thanksgiving with neighbors. On mental status examination, he was alert and fully oriented. His speech was coherent, relevant, and goal-directed and he had no formal thought disorder. His memory was grossly intact, and his concentration was good. No hallucination or delusions were shown. His judgment was grossly intact, and his insight was fair. More recently, VA provided an examination in February 2019. The Veteran reported excessive worry, poor sleep, racing thoughts, irritability, restlessness, hopelessness, decreased interest in activities, and social isolation. The examiner found that the Veteran's psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran remained married his spouse since 1966. He described his relationship with his adult daughter "bad." He enjoyed a movie once a week and going out to eat. He had not seen his cousin in the past year, but he had some social contacts that he would see periodically in Michigan. Symptoms presently attributable to the Veteran's disorder included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, circumstantial, circumlocutory of stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or work-like setting. On behavioral observations the Veteran's mood and affect were anxious. He was cooperative. He denied suicidal or homicidal ideation. There was no evidence of psychosis and his thought process was found to be linear. He was capable of managing his financial affairs. Vet Center records dated from January 2016 to April 2019 show the Veteran has been attending PTSD individual and group therapy sessions for symptoms of survival guilt, intrusive recollection, avoidance, and feelings of detachment from others. During his February 2012 hearing before this Board, the Veteran testified to experiencing depression, it having a consequent effect on his family relationships, also of irritability, anger, and memory loss. He denied suicidal ideation. In deciding whether a higher rating is warranted, the Board is mindful that an evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The symptoms listed in DC 9413 are not exhaustive, but rather "serve as [mere] examples of the type and degree of symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App.436, 442-43 (2002). Turning to consideration of the relevant medical and other evidence in this appeal, it supports finding that the Veteran's generalized anxiety disorder with unspecified depressive disorder does not warrant a higher 100 percent disability rating. VA psychiatrists and psychologists who have evaluated him indicated his thoughts were logical and goal directed. He did not engage in ruminative or morbid thinking. They also noted he did not have delusional thinking nor was he hallucinating or suicidal. So, ultimately, the evidence does not show the required total occupational and social impairment. He is currently retired after a long career as an electrician, but the record does not demonstrate that his psychiatric disability causes total occupational impairment. Moreover, although inability to work in a substantially gainful capacity in the TDIU context does not require "total" or "100 percent" occupational impairment, the Veteran's TDIU claim is being separately remanded for further development and consideration. See, e.g., Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (clarifying that a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability). Conversely, the express wording of DC 9413 of the General Rating Formula specifies there must be total occupational impairment owing to the service-connected mental disorder, aside from the total social impairment that also is required. The February 2019 VA examiner commented that, due to the Veteran's difficulty with attention, concentration and subsequent memory difficulties instructions would need to be provided verbally and written format; due to difficulty with worry, he might require frequent positive reinforcement, and due to racing thoughts he with require redirection to stay on task. However, these impairments do not necessarily render the Veteran totally disabled for employment. The examiner also stated that due to restlessness, the Veteran might struggle with a sedentary position, however, his employment history indicates that his usual occupation was not of sedentary nature. Furthermore, the Veteran is not totally socially impaired. He has been married to his present wife since 1966 and has consistently reported that they get along well. Also, he has other relationships with relatives and other social contacts such as neighbors and friends, with whom he has reported occasionally spending time. Thus, there is not total social impairment. The Veteran's current symptoms are contemplated by the 70 percent criteria and the evidence of record does not show any gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Also, although he has on occasion expressed suicidal ideation, even if not actual intent to do it, it cannot be said this has been persistent, so not akin to the persistent danger of self-harm that is contemplated by the higher 100 percent rating. The Court has clarified that an actual act or attempt of suicide is not required, only instead this contemplation, to in turn warrant assigning a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (holding that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas to satisfy the requirements for a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. The Veteran in this appeal, however, already has a 70 percent rating, so recognition of this. The severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the higher 100 percent disability rating. Accordingly, this claim for a rating higher than 70 percent must be denied. 5. Whether the rating reduction for prostate cancer from 100 to 60 percent as of June 1, 2018 was proper. The Veteran contends that this reduction was improper and that his prior rating of 100 percent should be restored (reinstated). Ordinarily, prior to reducing a Veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). However, if there is no reduction in the amount of compensation payable to a beneficiary, 38 C.F.R. § 3.105(e) does not apply. See VAOPGCPREC 71-91. Moreover, sometimes, according to the specific language of a regulatory DC, a rating will only be in effect for a prescribed period of time and, unless circumstances dictate, will be reduced at the end of the designated period usually pending reevaluation. This is the precise situation with prostate cancer. Prostate cancer is evaluated under 38 C.F.R. § 4.115b, DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least 6 months following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals either voiding dysfunction or a renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urine leakage requiring the wearing of absorbent materials that must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating is warranted when the wearing of absorbent materials which must be changed two to four times per day is required. A (maximum) 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. Id. Urinary frequency involving a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating. Urinary frequency involving a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating, the maximum allowable rating under urinary frequency. Id. Initially, the Board has considered whether this claim would be most appropriately characterized as a formal reduction claim under the substantive provisions of 38 C.F.R. §§ 3.343, 3.344. However, the Board finds that these provisions are inapplicable here because the provisions of 38 C.F.R. § 4.115, DC 7528, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the RO's action was not a "rating reduction," per se, as that term is commonly understood. See Rossello v. Principi, 3 Vet. App. 430 (1992), (wherein the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating). In other words, this is in essence a "staged" rating case, rather than a formal reduction case, because of the clear temporal element of DC 7528. When a rating is "staged", it means different ratings are assigned at different times depending on the relative severity of the disability. Hart, 21 Vet. App. at 505. The rating reduction in this case was procedural in nature and by operation of law. The Board only must determine whether the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 7528. The Veteran's contentions notwithstanding, the Board finds that the procedural requirements were indeed properly followed in this case and the "reduction" was by operation of law under DC 7528. In a January 2017 rating decision, the Veteran was awarded a 100 percent disability rating for prostate cancer, effective from January 10, 2017. He later was scheduled for his mandatory VA examination as required by DC 7528 to reassess the severity of this disability. In a September 2017 rating decision, the RO proposed to reduce the rating for this service-connected disability from 100 to 20 percent. The Veteran was duly informed of the proposed reduction and of his right to a pre-determination hearing in a September 2017 notification letter. The Veteran did not respond to that notification. In a March 2018 rating decision, the RO finalized the reduction of the Veteran's prostate cancer rating but from 100-percent disabling to 20-percent disabling effective June 1, 2018. As such, the Board finds that the AOJ complied with the regulatory requirements as set forth in 38 C.F.R. § 3.105(e) and DC 7528. The Veteran filed a Notice of Disagreement (NOD) with the 20 percent rating along with a written statement indicating that he had at least 5-night awakening to void and he had to change at least 6 small pads due to urine leakage during the day. The RO issued an April 2018 rating decision granting an increased 60 percent rating for the prostate cancer effective June 1, 2018. Following the issuance of a Statement of the Case (SOC) in April 2018, the Veteran perfected an appeal to the Board regarding that change in rating. In considering the evidence of record under the applicable laws and regulations, the Board concludes that there is no evidentiary basis for continuance of the 100 percent rating for the prostate cancer residuals under DC 7528. The evidence of record, including pertinent VA treatment records and the reports of VA genitourinary examinations, does not reveal local recurrence or metastasis (spreading) of the Veteran's malignant neoplasm of the genitourinary system-prostate cancer. The August 2017 VA examination determined the Veteran's prostate cancer was in remission and that he had completed treatment for it. Accordingly, when applying the diagnostic criteria to his disability, the Board finds that a 100 percent is not warranted (and no longer was when reduced to the lesser 20 percent level). During a February 2019 VA examination, the examiner observed the Veteran's prostate cancer was in remission and that he had completed his treatment for it when he had radical prostatectomy in February 2017. The Veteran conceded not having had a recurrence, although he had increased urinary frequency since the prostatectomy and required the use of absorbent liners that needed changing 2 to 4 times during the day and once at night. He added that he cut back on fluid intake if travelling or at night. He did not use an appliance. He also reported daytime voiding with intervals of between 2 to 3 hours and nighttime awakening to void 3 to 4 times. There were no obstructive voiding or urinary tract/kidney symptoms. The examiner explained the Veteran also suffers from ED but that he was taking medication for it for a few years prior to his prostate cancer diagnosis and prostatectomy and that it was likely due to vascular etiology as well as chronic opiod use, which causes androgen deficiency. Of note, the Veteran did not report any other physical findings owing to his prostate cancer. On an April 2019 DBQ submitted by the Veteran, the examiner also states that the Veteran was in remission and had urinary incontinence from his prostatectomy in 2017. The Veteran had required the use of absorbent materials that must be changed 4 to 6 times daily. He did not use an appliance. The Veteran also reported daytime voiding interval less one hour and nighttime awakening to void 5 or more times. There were no obstructive voiding or urinary tract or kidney symptoms. This examiner stated that the Veteran's ED was likely attributable to his prostate cancer. There were not any other physical findings related to his prostate cancer residuals. During the February 2021 Board hearing, the Veteran testified that he wears absorbent pads that need to be changed more than 4 times a day and that he wakes up to void at least five times per night. But, as discussed, after following the proper statutory due process procedure, the RO properly determined that the Veteran's prostate cancer residuals are manifested in voiding dysfunction that include urinary leakage and increased frequency and voiding, but not in the local recurrence or metastasis that warrants maintaining a 100 percent rating. Consequently, the Board concludes that discontinuance of the 100 percent rating for the residuals of the prostate cancer effective June 1, 2018 was appropriate. By operation of law, while the Veteran's prostate cancer is in remission and after the 6-month post-treatment period has ended, the highest disability rating allowed for prostate cancer residuals is 60 percent for a voiding dysfunction. See 38 C.F.R. § 4.115a. The Veteran already has been granted this maximum 60 percent rating in this circumstance, effective June 1, 2018, for voiding dysfunction as a result of his prostate cancer residuals subsequent to the proper rating reduction, to include his urinary incontinence and frequency. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7528. Treatment records and VA examinations show no renal dysfunction, and there is no argument of renal dysfunction. There is also no evidence of recurrence or metastasis of the Veteran's prostate cancer, or therapeutic treatment for cancer, during the appeal period. Thus, a higher schedular rating is not warranted. Id. Moreover, although the Veteran has had urinary frequency, as well, the highest rating available for that condition is 40 percent. Separate ratings may not be assigned based on the similar symptoms of urinary leakage and increased urinary frequency because that would constitute impermissible pyramiding. 38 C.F.R. § 4.14. ED is already included as part of the Veteran's service-connected prostate cancer disability, albeit as a non-compensable residual symptom. In addition, he is already in receipt of SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. The Veteran contends that he suffers from peripheral neuropathy of his lower extremities secondary to his service-connected type II diabetes mellitus. In January 2016, a VA medical opinion was obtained concerning the etiology of this claimed disability. The VA examiner noted that the Veteran started having numbness in both feet around 1993 to 1994 and that he was not diagnosed with diabetes mellitus then and his current diabetes mellitus is mild and of more recent onset, so not likely to cause diabetic neuropathy. In a February 2016 addendum, that same examiner clarified his opinion that any bilateral peripheral neuropathy of the lower extremities the Veteran has is less likely than not proximately due to or the result of his type II diabetes mellitus. However, the Board finds the opinion inadequate for adjudication purposes. The examiner did not provide any opinion on whether the peripheral neuropathy of the Veteran's lower extremities, instead, is aggravated by his service-connected type II diabetes mellitus. And medical opinions in the secondary service connection context must address both causation and aggravation. See 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) Therefore, an addendum opinion is needed addressing this additional possibility. 3. Entitlement to a TDIU is remanded. This claim for a TDIU is "inextricably intertwined" with the service connection claims being remanded. See 38 C.F.R. § 19.31; Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that claims are inextricably intertwined when they are so closely tied together that a final Board decision on one cannot be rendered until the others are adjudicated). So, the Board must temporarily defer adjudication of this TDIU claim pending completion of the additional development being directed concerning the claims for service connection for peripheral neuropathy of the lower extremities. Accordingly, these claims are REMANDED for the following action: Obtain supplemental comment (an addendum opinion) concerning the likelihood the Veteran's service-connected type II diabetes mellitus is causing OR aggravating the peripheral neuropathy of his lower extremities. *The opinion must specifically address aggravation since those, to date, only instead have addressed causation. Also, when responding, the examiner must remain mindful that a rather recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.