Citation Nr: 21031665 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 08-36 452 DATE: May 24, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus from July 14, 2005 to July 1, 2013; is denied. Entitlement to a disability rating of 40 percent and no higher for type II diabetes mellitus from July 2, 2013 to January 21, 2014; is granted. Entitlement to a disability rating in excess of 40 percent for type II diabetes mellitus from January 22, 2014 is denied. Entitlement to an initial compensable disability rating for bilateral cataracts associated with type II diabetes mellitus is denied. Entitlement to service connection for a rectal disability, to include rectal cancer (also claimed as colon cancer) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include memory loss and sleep impairment is remanded. FINDINGS OF FACT 1. The Veteran's type II diabetes mellitus required only restricted diet and one or more daily injection of insulin and/or an oral glycemic agent from July 14, 2005 through July 1, 2013. 2. From July 2, 2013; the Veteran's type II diabetes mellitus required restricted diet, and/or an oral glycemic agent, with regulation of activities. 3. From July 2, 2013; the Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, and the Veteran did not have complications that would not be compensable if separately evaluated. 4. The Veteran's bilateral cataracts manifests as impaired visual acuity to no worse than 20/20 bilaterally, and no reports of incapacitating episodes in a twelve-month period. 5. The preponderance of the evidence is against finding that the Veteran's rectal disability, to include rectal cancer (also claimed as colon cancer) began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus from July 14, 2005 through July 1, 2013; have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for a disability rating of 40 percent, and no higher, for type II diabetes mellitus from July 2, 2013 through January 21, 2014; have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 3. The criteria for a disability rating in excess of 40 percent for type II diabetes mellitus from January 22, 2014; have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 4. The criteria for a compensable disability rating for bilateral cataracts have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6027, Diagnostic Code 6066, Diagnostic Code 6079. 5. The criteria for service connection for a rectal disability, to include rectal cancer (also claimed as colon cancer) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1962 until his honorable discharge in October 1964. Subsequently, the Veteran served in the Virginia Army National Guard for many years, including subsequent active duty service from December 1979 until his honorable discharge in August 1985 and from October 1990 until his honorable discharge in June 1991; and ultimately retired honorably from the Virginia Army National Guard effective February 1996. The Veteran served in Southwest Asia in support of Operation Desert Shield/Desert Storm IAW 10 U.S.C. § 673B from November 1990 to May 1991. The Veteran died in January 2015. His widow was substituted in his place as the appellant in a February 2019 Regional Office (RO) of the United States Department of Veterans Affairs (VA) determination. She therefore "steps into his shoes" for purposes of continuing this appeal. The Board notes that in the meantime, she was granted dependency and indemnity compensation based upon service connection for the cause of the Veteran's death. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2007 and September 2008 rating decisions by the Nashville, Tennessee RO of the VA. In August 2012, the Board remanded the case to the RO for further development. Subsequently, in December 2019, the Board once again remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain the Veteran's VA treatment records from 2009 to the present; request the appellant to complete a VA Form 21-4142 for all non-VA physicians that treated the Veteran from 2013 to 2015; obtain an addendum opinion from a VA physician with expertise in environmental exposures regarding whether chemical exposures during the Veteran's active service, to include in Southwest Asia, more, less, or equally likely caused or contributed to his rectal cancer and/or to a psychiatric disability. The Board notes that the Veteran is rated at a 100 percent disability rating since June 27, 2007. See December 2019 Board decision; see also January 20, 2021 Rating Decision. Although the Veteran's disabilities are considered permanently and totally disabled due to his service-connected disabilities, the appellant has a right to continue to pursue her claims and as noted in greater detail below, when a remand is required, the appellant is entitled to the appropriate adjudication to each and every claim. Qualifying Service Active duty for training includes full-time duty with the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. Inactive duty training includes service with the National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6 (d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (explaining that "members of the National Guard only serve the [F]ederal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor."). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of his or her state. "[M]embers of the National Guard only serve the Federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility as a veteran based on a period of duty as a member of a state National Guard, a guardsman must have been ordered into Federal service by the President of the United States under 38 U.S.C. §§ 316, 502, 503, 504, or 505. Hence, for the appellant's service in the National Guard, only periods of Federalized service are qualifying service for the purpose of VA compensation benefits. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation 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(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2)...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Ferguson v. West, 12 Vet. App. 119, 125-26 (1999). As will be addressed below, staged ratings have been assigned for the Veteran's type II diabetes mellitus. 1. Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus from July 14, 2005 to January 21, 2014 2. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus from July 29, 2014 to January 21, 2014 3. Entitlement to a disability rating in excess of 40 percent for type II diabetes mellitus from January 22, 2014 The Veteran asserts that he is entitled to a higher disability rating for his service-connected type II diabetes mellitus. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). From July 14, 2005 to July 1, 2013 The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal. VA treatment records from 2004 reflect that the Veteran was prescribed "pills" for his type II diabetes mellitus and encouraged to engage in a program of physical activities tailored to age, health status, and personal lifestyle. See Mountain Home VAMC treatment records from April 26, 2002 through April 13, 2005. Furthermore, the Veteran submitted a Statement in Support of Claim (VA Form 21-4138) in February 2007 in which he stated that he had non-insulin dependent type II diabetes mellitus. See February 2007 Statement in Support of Claim (VA Form 21-4138). The Veteran was encouraged to engage in a program of physical activities tailored to age, health status, and personal lifestyle. See Mountain Home VA treatment records, December 7, 2006. From October 2007, VA treatment records reflect that the Veteran was prescribed both an oral glycemic agent and insulin with no documentation of regulation of activities. See Mountain Home VAMC treatment records from October 31, 2007 through March 31, 2008; see also Mountain Home VAMC treatment records from July 31, 2008 through August 17, 2009; see also Mountain Home VAMC treatment records from October 7, 2009 through December 31, 2011; see also Mountain Home VAMC treatment records from December 2, 2011 through March 14, 2013. The Board notes that the Veteran reported that his activities are curtailed due to the increased blood sugar levels. See June 2007 Statement in Support of Claim (VA Form 21-4138) (Informal Notice of Disagreement to the May 2007 rating decision). The Veteran is competent to report reduction in activities, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The record shows that the Veteran has complications of his service-connected type II diabetes. Specifically, coronary artery disease and bilateral cataracts, both of which he is currently service connected for. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. From July 2, 2013 to January 21, 2014 The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required restricted diet, an oral glycemic agent, and regulation of activities during this period on appeal. The Veteran was afforded a VA examination in July 2013. The July 2013 VA examiner found that the Veteran's treatment for his type II diabetes mellitus was managed by restricted diet, prescribed oral hypoglycemic agent(s) (metformin and glyburide), and regulation of activities noting that strenuous activity and overexertion can cause hypoglycemia and that the Veteran has had infrequent episodes of hypoglycemia. Furthermore, the VA examiner noted that the Veteran had to visit his healthcare provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month with no episodes of ketoacidosis requiring hospitalization within the prior 12 months. The Veteran is competent to report reduction in activities, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and medical treatment records do not show, that his diabetes mellitus required twice a month doctor visits nor one or more hospitalizations per year. The record shows that the Veteran has complications of his service-connected type II diabetes. Specifically, coronary artery disease and bilateral cataracts, both of which he is currently service connected for. Accordingly, the preponderance of the evidence is for assigning a rating of 40 percent, but no higher, during this period on appeal. From January 22, 2014 The question in this appeal is whether the Veteran's diabetes mellitus requires one or more daily injections 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. The Board finds that the Veteran did not have episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The Veteran reported some hypoglycemic episodes, mostly when working in his garden. See Mountain Home VAMC treatment records from May 7, 2014. Furthermore, the Veteran reported 2 significant hypoglycemic events in the prior month. See Mountain Home VAMC treatment records from November 26, 2014. However, the record does not reflect that any of the hypoglycemic events required hospitalization, nor did the Veteran's treatment for his type II diabetes mellitus require twice a month visits to a diabetic care provider. The Veteran does not assert nor does medical treatment records show, that the Veteran's type II diabetes mellitus required twice a month visits or one or more hospitalizations per year. As noted above, the record shows that the Veteran has complications of his service-connected type II diabetes. Specifically, coronary artery disease and bilateral cataracts, both of which he is currently service connected for. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 40 percent during the period on appeal. 4. Entitlement to an initial compensable disability rating for bilateral cataracts associated with type II diabetes mellitus The Veteran asserts that he is entitled to a higher disability rating for bilateral cataracts. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a noncompensable disability rating under Diagnostic Code 6079 for noncompensable impairment of visual acuity. The Board notes that prior to December 10, 2008, Diagnostic Code 6079 provided that when visual acuity in one eye was 20/50 and visual acuity in the other eye was 20/40, a 10 percent disability rating was warranted. When visual acuity in both eyes was 20/40, a noncompensable disability rating was warranted. Effective December 10, 2008, Diagnostic Code 6079 was removed from the regulations. Diagnostic Code 6066 now provides ratings where vision in one eye (the poorer eye) is 10/200 or better. 38 C.F.R. § 4.79. The Board notes that the criteria under Diagnostic Code 6079 and 6066 are equivalent. However, the Board also finds that a rating under either Diagnostic Code 6079 and Diagnostic Code 6066 are not the appropriate Diagnostic Codes to rate the Veteran's disability. The evidence does show the Veteran is service connected for bilateral cataracts. As such, the Board finds that a rating under Diagnostic Code 6024 for cataracts is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6024. Finally, the Board notes that the change in Diagnostic Code broadens consideration for an increased rating beyond corrected distance visual acuity to include symptoms, such as, defects in visual fields and incapacitating episodes by rating the Veteran's disability under the General Rating Formula for Diseases of the Eye and because the Veteran's current disability has been rated under Diagnostic Code 6079 for under 10 years (between entitlement date and date of death), a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159. The Veteran's bilateral cataracts is rated under 38 C.F.R. § 4.79, Diagnostic Code 6027. Under Diagnostic Code 6027, preoperative cataracts are rated under the General Rating Formula for Diseases of the eye. Postoperative cataracts are rated under the General Rating Formula for Diseases of the eye if there is a replacement lens present or under Diagnostic Code 6029 for aphakia if there are not replacement lens present. 38 C.F.R. § 4.79, Diagnostic Code 6027. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15,316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula for Diseases of the Eye indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. Impairment of central visual acuity is evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76. Visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, Diagnostic Codes 6061 to 6066. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6078 and 6079; 38 C.F.R. § 4.79, Diagnostic Code 6066. A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity of 20/70 in one eye and 20/50 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6077 and 6078; 38 C.F.R. § 4.79, Diagnostic Code 6066. A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, and 6078; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes, 6066, 6070, 6073, and 6076; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes, 6065, 6069, 6073, 6076, and 6078; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes, 6065, 6069, 6073, and 6076; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/200; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/200; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/200; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6061, 6062, 6063, 6067, and 6071; 38 C.F.R. § 4.79, Diagnostic Codes 6064 and 6065. As noted above, the Board remanded this matter in August 2012 to obtain a new VA examination. The August Board remand directed the RO to schedule the Veteran for a VA eye examination to determine the current severity of the service-connected bilateral cataracts. The record indicates that the Veteran was scheduled for a VA eye examination on June 20, 2013. However, in a July 2, 2013 notification, the RO was notified that the Veteran failed to report for the June 20, 2013 VA examination. Like the VA, the Veteran had a duty to assist because the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Simply put, if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board shall consider the Veteran's disability rating on the evidence of record. An October 2006 annual examination reveals that the Veteran had no visual complaints. 10.05.2006 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/25 or better 20/20 20/20 20/20 LEFT 20/30 20/20 20/20 20/20 The October 2006 evaluation did not reveal that the Veteran has a documented visual field defect. Based on the evidence above, a compensable disability rating for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/20 corrected distance bilaterally warrants a noncompensable disability rating. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable disability rating for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted 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(a). To establish a right to compensation for a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 5. Entitlement to service connection for a rectal disability, to include rectal cancer (also claimed as colon cancer) The Veteran asserts that his rectal cancer was caused by his military service, to include service in Southwest Asia. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was diagnosed with rectal cancer in June 2006. See Medical Treatment Record Non-Government Facility dated June 14, 2006 (received March 14, 2007). Second, affording the Veteran the benefit of the doubt, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Affording the Veteran the benefit of the doubt, the Veteran was exposed to toxic chemicals during his service in Southwest Asia. Third, the Board finds that the evidence of record does not support a finding that the Veteran's rectal disability, to include rectal cancer (also claimed as colon cancer) is related to active service. The RO obtained a nexus opinion in December 2020 from a VA examiner. The December 2020 VA examiner opined that the Veteran's rectal cancer is less likely than not (less than 50 percent probability) caused by toxic exposures because the current, widely accepted, peer-reviewed literature, including up to date review, has not established toxic exposure as a cause for rectal cancer. Accordingly, entitlement to service connection for rectal disability, to include rectal cancer (also claimed as colon cancer) is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include memory loss and sleep impairment is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in July 2012. The July 2012 VA examiner diagnosed the Veteran with depressive disorder, not otherwise specified (NOS). However, the remainder of the July 2012 VA examination does not provide a nexus opinion nor rationale for the Veteran's depressive disorder, NOS but rather discusses why the Veteran is not diagnosed with posttraumatic stress disorder (PTSD). As the July 2012 VA examiner noted, the Veteran was prescribed sertraline and was taking 75 mg daily, which he started in December 2011. Because the July 2012 VA examiner failed to provide a nexus opinion for the Veteran's acquired psychiatric disability, the opinion is inadequate. The Veteran was afforded a second VA examination in June 2013. The June 2013 VA examiner opined that the Veteran did not have a diagnosed mental health disability, but acknowledged that the Veteran's reported symptoms best represent a history of depression NOS related to multiple chronic health issues (colon cancer, type II diabetes mellitus, thyroid dysfunction), rumination about the stress associated with his former position in the (Virginia Army) National Guard, and family stressors (strained relationship with grandson). The June 2013 VA examiner opined that the Veteran no longer qualifies for a diagnosis of depression NOS based on his report that his mood is "good" most days and sleep disturbance is resolved with melatonin (reporting typically getting 8 to 9 hours of good sleep per night). The June 2013 VA examiner opined that it is less likely than not (less than 50 percent probability) that any current memory loss and/or sleep impairment is due to a psychiatric disability because the Veteran did not meet the criteria for a mental disorder diagnosis at the time of the evaluation. Furthermore, the June 2013 VA examiner noted that the Veteran does not present with any significant complaints of memory loss and indicated his sleep quantity and quality is good under his current medication regimen. The Board finds that the June 2013 VA examination is inadequate because it is internally inconsistent. The June 2013 VA examiner asserts that there is no psychiatric diagnosis, acknowledges (and appears to affirm) the prior diagnosis, but in acknowledging that the Veteran's symptoms of memory loss and sleep impairment are insignificant, the examiner also explains that the symptoms are insignificant under the Veteran's medication regimen. The June 2013 VA examination appears to indicate both that there is not a current disability and that there is a mental condition that has been formally diagnosed, but the symptoms are not severe enough either to interfere with occupational and social impairment, or requires continuous medication. After the Veteran's death, the RO obtained an addendum opinion in January 2021. The January 2021 VA examiner opined that the Veteran's acquired psychiatric disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the Veteran's most recent VA examination (June 2013) noted that the Veteran had no mental health diagnosis and that the Veteran did not meet the criteria for a mental disorder diagnosis at the time of the evaluation; the Veteran did not present with significant complaints of memory loss and indicated his sleep quantity and quality was good under his current medication regimen. The January 2021 VA examiner also noted that the Veteran's mental health symptoms are most likely relating to multiple chronic health issues (colon cancer, type II diabetes mellitus, and thyroid dysfunction), rumination about the stress associated with his former position in the (Virginia Army) National Guard, and family stressors (strained relationship with grandson) and because he did not receive any treatment until November 2011 when he was referred by his primary care provider for an evaluation. The January 2021 VA examiner also noted that although there may be some vague reference to the Veteran's overall service and that the Veteran indicated that he believed the symptoms began in Desert Storm, there is no record of diagnosis nor treatment or reported mental health issues prior to 2012. The Board finds the January 2021 VA examination to also be inadequate because it relies on the inadequate June 2013 VA examination that appears to be internally inconsistent. For the above reasons, remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's acquired psychiatric disability is at least as likely as not (50 percent probability or greater) related to active service (direct service connection); and/or proximately due to one or more service-connected disabilities (i.e. Coronary Artery Disease, type II diabetes mellitus, tinnitus, bilateral hearing loss, and/or bilateral cataracts); and/or aggravated beyond its natural progression by one or more service-connected disabilities (i.e. Coronary Artery Disease, type II diabetes mellitus, tinnitus, bilateral hearing loss, and/or bilateral cataracts). If the VA examiner determines that there was no current disability [from the June 2013 VA examination] (rather than a disability managed by medication), the examiner must clearly state the lack of disability and provide a clear rationale as for the cessation of the acquired psychiatric disability. Furthermore, the VA examiner must provide a nexus opinion for the period prior to the June 2013 VA examination (or the date of the cessation of the acquired psychiatric disability, whichever is greater) with a detailed rationale when the Veteran clearly had a diagnosis of a mental disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate 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.