Citation Nr: 22017564 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-25 507 DATE: March 25, 2022 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right knee disability is denied Entitlement to service connection for a left knee disability is denied. Entitlement to an effective date of April 26, 2017, for the assignment of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an earlier effective date than April 26, 2017, for chronic kidney disease is denied. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type 2, is denied. Entitlement to disability rating in excess of 10 percent for peripheral neuropathy with carpal tunnel syndrome, right upper extremity (major), is denied. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy with carpal tunnel syndrome, left upper extremity (minor), is denied. Entitlement to a disability rating in excess of 10 percent prior to January 29, 2020, for peripheral neuropathy of right lower extremity is denied. Entitlement to a disability rating in excess of 10 percent prior to January 29, 2020, for peripheral neuropathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent after January 29, 2020, for peripheral neuropathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 20 percent after January 29, 2020, for peripheral neuropathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 60 percent for chronic kidney disease (previously claimed as renal dysfunction) is denied. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to TDIU, on an extraschedular basis, prior to April 25, 2017, is remanded. FINDINGS OF FACT 1. A right shoulder disability did not manifest during service, is not attributable to service, and is not due to (causation or aggravation) a service-connected disease or injury. 2. A left shoulder disability did not manifest during service, is not attributable to service, and is not due to (causation or aggravation) a service-connected disease or injury and arthritis was not manifest in service or within one year of separation. 3. A right knee disability did not manifest during service, is not attributable to service, and is not due to (causation or aggravation) a service-connected disease or injury and arthritis was not manifest in service or within one year of separation. 4. A left knee disability did not manifest during service, is not attributable to service, and is not due to (causation or aggravation) a service-connected disease or injury and arthritis was not manifest in service or within one year of separation. 5. From April 26, 2017, the service-connected disabilities render the Veteran unable to secure and follow a substantially gainful occupation. 6. The Veteran did not appeal a May 2004 rating decision denying his original, January 15, 2004, claim for chronic kidney disease. 7. The Veteran's diabetes mellitus type II has required daily injection of insulin and restricted diet. Regulations of activities have not been shown. 8. Peripheral neuropathy with carpal tunnel syndrome, right upper extremity (major), involved symptoms that were mild. 9. Peripheral neuropathy with carpal tunnel syndrome, left upper extremity (minor), involved symptoms that were mild. 10. Prior to January 29, 2020, the Veteran's peripheral neuropathy of the right lower extremity manifested with no more than mild impairment. 11. Prior to January 29, 2020, the Veteran's peripheral neuropathy of the left lower extremity manifested with no more than mild impairment. 12. After January 29, 2020, the Veteran's peripheral neuropathy of the right lower extremity manifested with no more than moderate incomplete paralysis. 13. After January 29, 2020, the Veteran's peripheral neuropathy of the left lower extremity manifested with no more than moderate incomplete paralysis. 14. Chronic kidney disease did not involve persistent edema and albuminuria with BUN 40 to 80mg percent; or creatinine 4 to 8mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. A left shoulder disability was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. A right knee disability was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 4. A left knee disability was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. As of April 26, 2017, the criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.18, 4.19. 6. The criteria for an effective date prior to April 26, 2017, for the award of service connection for chronic kidney disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 7. The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code C 7913. 8. The criteria for a rating in excess of 10 percent for peripheral neuropathy with carpal tunnel syndrome, right upper extremity (major), have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515. 9. The criteria for a rating in excess of 10 percent for peripheral neuropathy with carpal tunnel syndrome, left upper extremity (minor), have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8515. 10. Prior to January 29, 2020, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 11. Prior to January 29, 2020, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 12. After January 29, 2020, the criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 13. After January 29, 2020, the criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 14. The criteria for a rating in excess of 60 percent for chronic kidney disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.115a, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1970. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection, secondary service connection is warranted for a disability which is proximately due to, or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 1. & 2. Right and left shoulder disability On his January 2017 Application for Disability Compensation and Related Compensation Benefits, the Veteran contended that his shoulder disabilities are due to bilateral neuropathy. An August 2005 VA primary care note states that the Veteran developed right shoulder pain approximately three weeks before and had not had injury in the past. He had treatment periodically since. The Board observes that this was approximately 35 years after separation from service in September 1970. A VA examination report from May 2017 noted a right rotator cuff tear. The date of onset of the current symptoms was listed as June 2015. The Veteran stated the condition began as pain in the right shoulder and he was having more pain. The Veteran had steroid shot treatment and was told he had a tear in the shoulder. A May 2017 VA medical opinion from a Dr. K.S., an internist, found no link between the diagnosed medical condition and the peripheral neuropathy with carpal tunnel syndrome of the left upper extremity. The rationale provided includes that the right shoulder condition started in 2016 and is not due to service, and there is no pathophysiological relationship between the shoulder and peripheral neuropathy. For the left shoulder, there was no left shoulder pathology to render a diagnosis. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has stated his belief that a service-connected disease or injury, or service directly, caused his bilateral shoulder disability. As the Veteran has not claimed to be a medical professional, statements to this effect in absence of lay observable symptoms or other lay observable evidence are not competent. The Veteran is not competent to report etiology in the absent of observable symptoms. While the Veteran believes a shoulder disability is due to bilateral neuropathy, such an assertion regarding etiology, without any other supporting information, is not within the competency of a lay person. There is no evidence from a competent source of any type of a relationship between a shoulder disability and bilateral neuropathy. In contrast, the Board finds that the VA medical opinion is more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. The examiner determined that there was no pathophysiological relationship between the shoulder and peripheral neuropathy. The examiner had knowledge of the Veteran's medical history and the medical record, examined the Veteran, and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. The Board has considered other theories. Although there is no separation report of medical history or a separation medical examination, service medical records are negative for any shoulder problems or related issues. The Veteran's first reported problem with shoulder pain was in the 2000s, decades after service. There are no lay observations or statements, including from the Veteran, and a lack of evidence of shoulder problems, until decades after service. The evidence does not demonstrate in-service manifestation or occurrence of a shoulder disability. There is no competent evidence that the remote onset of a shoulder disorder is otherwise related to service or as due to service-connected disease or injury. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection for right and left shoulder disabilities. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for right and left shoulder disabilities is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. & 4. Left and right knee disability On his January 2017 Application for Disability Compensation and Related Compensation Benefits, the Veteran contended that his knee disabilities are due to bilateral neuropathy. The Veteran contended he had numbness around the knee in September 2006, although it is not clear if this was due to neuropathy or a knee disability. A May 2016 VA treatment note states the Veteran had left knee pain with new onset. A December 2016 VA treatment note also states that the Veteran had left knee pain for about 2 months. He had complex medial meniscal tear, MCL sprain, moderate degenerative joint disease, and moderate joint effusion and small popliteal cyst. A VA examination report dated in May 2017 found left meniscal tear with onset of symptoms in 2016. The condition has worsened since. MRI showed tears. A May 2017 VA medical opinion from a Dr. K.S., an internist, found, based on examination, that the right knee was normal. There was no pathology to render a diagnosis of a right knee condition. There is no pathophysiological relationship between the knee condition and peripheral neuropathy. The same doctor gave the same opinion for the left knee, also in May 2017, noting that the left knee condition started in 2016 and is not due to service. Further "[t]here is no pathophysiological relationship between the knee condition and peripheral neuropathy. Therefore, I find that it is less likely than not." The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has stated his belief that a service-connected disease or injury or service directly caused his left knee disability. As the Veteran has not claimed to be a medical professional, statements to this effect in absence of lay observable symptoms or other lay observable evidence are not competent. The Veteran is not competent to report etiology in the absent of observable symptoms. While the Veteran believes a left knee disability is due to bilateral neuropathy, such an assertion regarding etiology, without any other supporting information, is not within the competency of a lay person. There is no evidence from a competent source of any type of a relationship between a left knee disability due to bilateral neuropathy. In contrast, the Board finds that the VA medical opinion is more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. The examiner determined that the Veteran's pathophysiological relationship between the knee condition and peripheral neuropathy. The examiner had knowledge of the Veteran's medical history and the medical record, examined the Veteran, and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. The Board has considered other theories. Although there is no separation report of medical history or a separation medical examination, service medical records are negative for left knee problems or related issues. The Veteran first reported any problem with the left knee, at the earliest, in the 2000s, many decades after service. In the absence of lay observation, there is a lack of evidence of record of left knee problems until decades after service, and a lack of other evidence suggesting in-service manifestation or occurrence of a left knee disability. In sum, there is no acceptable evidence of record of a left knee disability during service. There is no competent evidence that the remote onset of a left knee disability is otherwise related to service or as due to service-connected disease or injury. For degenerative joint disease (arthritis), arthritis is a chronic disease. See 38 C.F.R. § 3.309(a). Finally, for certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest 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; 38 C.F.R. §§ 3.307, 3.309. The evidence of record shows that the Veteran's arthritis was not manifest in service or within one year of separation. He did not have characteristic manifestations to identify the disease entity during such a timeframe. The earliest finding of arthritis was many years after service. There is no probative evidence that arthritis was manifested during service or within one year of separation. There is no credible evidence of continuity of symptomatology. There is no acceptable evidence of record of arthritis during service or within one year of separation. The evidence does not show that the remote onset of arthritis first reported multiple decades after service is otherwise related to service. There is no disability of the right knee. The Board has considered the Veteran's statements that he has a disability. Here, the Veteran's reports lack credibility. VA treatment records do not show that the Veteran complained about a right knee disability. A VA examination found the right knee was normal. Therefore, here, the Veteran's assertions are outweighed by the medical record (treatment records and VA examination report) affirmatively showing no disability associated with the right knee. For the reasons expressed above, the evidence persuasively weighs against the claim of entitlement to service connection for a knee disability, right and left, and the claim must be denied. 5. TDIU from April 26, 2017 The Veteran's representative, in an August 2021 letter, asserts that the Board should grant TDIU from April 26, 2017. The current effective date for the grant of TDIU is November 6, 2019. TDIU can be awarded where the scheduler rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. As of April 26, 2017, the Veteran's service-connected chronic kidney disease is ratable at 60 percent disabling with a combined evaluation for compensation of 80 percent. The Veteran meets the schedular requirements for consideration for TDIU under 38 C.F.R. § 4.16(a) as of that date. All compensable disabilities are noted in this decision, in the increased ratings section. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. Id. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. The determination of unemployability is to be made by a VA adjudicator and is not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) The Statement of the Case did not address TDIU, to include the effective date. However, the claim for TDIU has been granted, according to an August 2020 rating decision, as due to peripheral neuropathy of the lower extremities, which, according to a VA examiner, caused the Veteran to be unable to maintain employment because he would stumble due to lack of sensation in the feet and also due to pain and burning of the feet. Here, therefore, whether TDIU is warranted as due to peripheral neuropathy of the lower extremities earlier than the current effective date is before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding the issue of entitlement to TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the initial adjudication of a claim or part of a claim for increased compensation). Rather than remand for issuance of an SOC on this issue, the Board finds a grant of benefits sought is warranted and therefore there is no prejudice to the Veteran in addressing the matter here. According to an August 2020 rating decision, the current date was based on an intent to file form received on November 6, 2019. A claim for a TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed a claim for increased rating for bilateral peripheral neuropathy, received on January 12, 2017. The VA examination for peripheral neuropathy, dated in April 2020, notes that "the Veteran had to stop working in 2016 because his job required him to be on his feet fo[r] 12 hours shifts and that made his feet burn / hurt. He also 'stumbled; a couple of times at work, since he does not have sensation in the plant of his feet." A January 2020 VA examination for peripheral nerves also notes functional impact, including only doing light work. VA treatment records indicate that the Veteran worked as a cook or chef and complained of problems with standing and handling objects for many years prior to ceasing work. See, e.g., May 2011 VA treatment record ("H[istory] of neuropathy in his hands secondary to dm, he works as a chef and the symptoms are limiting him."). A July 2014 VA treatment record indicated that the Veteran was working at Lowe's with an "erratic" activity level and at a summer camp as a chef with a large staff to help him. A different treatment note listed the Veteran as retired that same month. In 2016, VA treatment records mention in passing that the Veteran is unable to walk as much as he used to and lists him as retired. Given the evidence of record, it is established that the Veteran could not secure or follow a substantially gainful occupation due to upper and lower extremity neuropathy prior to retirement and that a medical professional (examiner) noted a problem with work and that he last worked in 2016. This examiner's opinion formed the basis of a grant of TDIU by the AOJ. A peripheral neuropathy increased rating claim had been pending since January 2017 and neuropathy is a cause of TDIU. Here, TDIU is granted as of April 26, 2017, which is when the Veteran first met the criteria for schedular TDIU. For the period from January 12, 2017 the date of the underlying claim for neuropathy to April 26, 2017, the Veteran did not meet the schedular criteria. However, the Veteran submitted a claim for an increase, there is no indication that he did not seek the highest rating possible, and there is some evidence that he ceased work prior to April 26, 2017. Therefore, the issue of TDIU from January 12, 2017 to April 25, 2017 is addressed in the remand section, as referral is necessary under 38 C.F.R. § 4.16(b). 6. Chronic Kidney Disease Effective Date Prior to April 26, 2017 Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). VA amended its adjudication regulations effective March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The current claim was filed in January 2017 and therefore the new regulation applies. The Veteran has stated that an earlier effective date for the grant of service connection for chronic kidney disease is warranted. See, e.g., May 2018 Notice of Disagreement. The current effective date for the grant of service connection for chronic kidney disease is April 26, 2017. The Veteran filed a claim for problems with urination, denied as renal dysfunction, in a rating decision dated in May 2004. Treatment records at the time showed no disability. VA sent the Veteran a notice letter the next month notifying him of the denial. Thereafter, no notice of disagreement and no further evidence or information was received from the Veteran. As the Veteran did not timely appeal the May 2004 decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran, in this case, never filed an additional claim for chronic kidney disease. Instead, VA treatment records dated in April 2017 showed chronic kidney disease (previously claimed as renal dysfunction) has been established as related to the service-connected disability of diabetes mellitus type 2. There is no basis for an effective date prior to this date, as there was no claim pending prior to April 2017. For the reasons expressed above, the evidence persuasively weighs against the claim of an earlier effective date for the grant of service connection for a kidney disability and the claim must be denied. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating 7. Diabetes mellitus In January 2017, the Veteran filed a claim for an increased rating for diabetes mellitus, currently rated at 20 percent since 2002 under diagnostic code 7913. The Veteran contends that he is entitled to a higher rating. 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 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's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus warrants a rating in excess of 20 percent. The Board finds that the Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin during the period on appeal, but not 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). A May 2017 VA examination noted diabetes requiring one or more daily injection of insulin and management by restricted diet. The Veteran reported he had restrictions with walking due to diabetes. The Veteran visited a diabetic care provide less than 2 times a month due to ketoacidosis and hypoglycemia. The Veteran had no loss of weight or strength. The Veteran reported he was not able to work due to foot pain. A1C of 6.5 percent or greater on 2 or more occasions noted. The Veteran had no other abnormalities or issues noted and otherwise had a normal examination. A March 2020 VA examination noted diabetes requiring one or more daily injection of insulin and prescribed oral hypoglycemic agent(s). The Veteran visited a diabetic care provider less than 2 times a month due to ketoacidosis and weekly for hypoglycemia. A1C of 6.5 percent or greater on 2 or more occasions. The Veteran reported that he had to stop working in 2016 because his job required him to be on his feet for 12 hours shifts and that made his feet burn and hurt. He also stumbled a couple of times at work, since he does not have sensation in the plant of his feet. Treatment records note medication for diabetes, namely insulin, and being monitored for diabetes. The medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The Veteran reported walking less, but did not have avoidance of strenuous occupational and recreational activities due to diabetes. Hence, a higher rating is not assignable for diabetes as this criterion is a requirement for all higher levels. While the Veteran is competent to report a reduction in activities, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the restriction of activities noted are symptoms which are attributable to other service-connected disabilities, given that the symptoms described match the symptoms of neuropathy. Here, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The Veteran is separately service-connected or has pending claims for complications of diabetes. Those claims are decided herein. Accordingly, the evidence of record persuasively weighs against assigning a rating in excess of 20 percent during the period on appeal. 8. & 9. Peripheral neuropathy with carpal tunnel syndrome right and left upper extremity The Veteran's peripheral neuropathy with carpal tunnel syndrome, right and left upper extremity, at 10 percent disabled under diagnostic code 8515. The Veteran filed a claim for an increased rating in January 2017. The Veteran's disability has been assigned a disability rating under DC 8515 of 38 C.F.R. § 4.124a. The applicable rating schedule is set forth as follows: The median nerve, 8515 Paralysis of: Complete; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances: 70 (major) or 60 (minor) Incomplete: Severe 50 (major) or 40 (minor), moderate 30 (major) or 20 (minor), and mild (major or minor) 10. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. A VA examination undertaken in February 2017 found that the Veteran had right and left upper extremity moderate constant pain, intermittent (usually dull pain), paresthesia and/or dysesthesias, and numbness. Muscle strength testing was normal (5/5) in all areas without any atrophy. Reflex examination and sensory examination were also normal in all areas. There were no trophic changes. The Veteran did not use assistive devices. The Veteran reported pain in feet and hands. A VA examination was provided in January 2020. The Veteran had mild numbness of the right and left upper extremity, but no other symptoms and all other findings were normal. The Veteran reported that he would be able to do traditional activities for 6-8 hours. Overall capable of light physical activity including carrying objects. In this case, a higher rating must be denied as the evidence does not show a disability picture more nearly approximating a moderate disability picture. The Board notes that there are no objective findings contrary to the VA examination reports. The Board therefore finds that the evidence supports a 10 percent evaluation for the neuropathy with carpal tunnel syndrome of the left and right upper extremity throughout the appeal period. The Board acknowledges the Veteran's complaints of pain, numbness, and tingling. However, the objective evidence discussed above indicates no more than mild impairment throughout the appeal period and the examination findings have not indicated impairment beyond that contemplated by the 10 percent rating. In short, the Veteran has a disability picture involving peripheral neuropathy with carpal tunnel syndrome right and left upper extremity that is mild. He has stiffness and swelling. The Board finds that this disability picture is consistent with the current rating for mild carpal tunnel syndrome. 1013. Right and left peripheral neuropathy of lower extremity The Veteran is rated at 10 percent prior to January 29, 2020 and 20 percent thereafter for neuropathy of left and right lower extremity under diagnostic code 8520. The applicable rating schedule is set forth as follows: 8520 Paralysis of: Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost 80 Incomplete: Severe, with marked muscular atrophy 60 Moderately severe 40 Moderate 20 Mild 10 In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120; see also 38 C.F.R. § 4.123, 124. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Introductory Note. Regulations provide ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. A VA examination undertaken in February 2017 noted that the Veteran reported experiencing severe left and right lower extremity constant pain, intermittent pain (usually dull pain), paresthesia and/or dysesthesias, and numbness. Muscle strength testing was normal (5/5) in all areas without any atrophy. Reflex examination and sensory examination were also normal in all areas. Gait was normal. There were no trophic changes. The Veteran did not use assistive devices. The Veteran reported pain in the feet and hands. A VA examination undertaken in January 2020 noted decreased sensation to light touch according to examination. The Veteran had mild constant pain bilaterally, severe right lower extremity intermittent dull pain, mild paresthesia and/or dysesthesias, and mild numbness. He decreased right and lower leg and foot and toes on a sensory examination. The Veteran had mild incomplete paralysis of the sciatic nerve, right and left. The Veteran had mild gait dysfunction. The Veteran otherwise had normal findings and no other symptoms. Generally, an effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The assignment of the date of the January 2020 examination for the increase is appropriate, as this was the first date the worsening disability was factually ascertainable. Prior to January 2020, a higher rating is not assignable as the evidence does not indicate a separate moderate disability level for any of the nerves involved. Although the examiner did not specify a level of disability, he did not indicate involvement at the moderate disability level for any nerves involved. The Board finds that the most probative evidence of record is against a finding that the disability was manifested by a moderate disability level prior to January 2020. After January 2020, there is no indication of muscle atrophy or complete paralysis, right or left. Based on the above, the Board finds that the disability is primarily manifest by some degree of impairment of sensory disturbance, numbness, and pain. This level of impairment is most analogous to moderate incomplete paralysis as it involves combinations of significant sensory changes and reflex or motor changes of a lower degree. Because the strength and sensory impairments were intermittent and were graded as no more than moderate, this evidence does not show a moderately severe disability picture. The Board thus finds that the level of impairment is most analogous to the current moderate incomplete paralysis. 14. Chronic kidney disease The Veteran filed a claim for chronic kidney disease in January 2017, granted effective April 26, 2017, with a 60 percent rating under diagnostic code 7541. The Veteran contends a higher rating is warranted. A rating decision dated in May 2017 granted the 60 percent rating based on an April 26, 2017 VA treatment definite showing decrease in kidney function (creatinine 1.36). Under Diagnostic Code 7541 prior to November 14, 2021, renal involvement in diabetes mellitus is rated as renal dysfunction. Under 38 C.F.R. § 4.115a, renal dysfunction is rated as noncompensable for albumin and casts with history of acute nephritis; or, hypertension noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 (diastolic pressure predominantly 120 or more) warrants a 60 percent evaluation. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg percent; or, creatinine 4 to 8mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Albuminuria refers to the presence of albumin (a protein) in the urine. Dorland's Illustrated Medical Dictionary 45 (32nd ed. 2012). Albuminuria is also known as "proteinuria" and is the presence of excess serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). Changes to diagnostic code 7541 and the associated ratings for Renal dysfunction changed as of November 14, 2021. As of that date, Renal dysfunction is measured by glomerular filtration rate (GFR) or, pursuant to the associated Note, estimated GFR (eGFR) or creatinine-based approximations of GFR. A VA examination occurred in April 2020. The examiner noted that the Veteran had nephrosclerosis. The examiner noted that in April 2014, his creatinine values were normal (1.03) and went up to 1.3 in 2017. He took medication for his kidney disorder. The Veteran had no symptoms of renal dysfunction, to include edema or albuminuria, and also did not have any lethargy, weakness, anorexia, weight loss, or limitation of exertion. BUN was noted as normal a 23, with creatine normal at 1.54. This evidence shows that the next higher, 80 percent disability level was absent. Findings of persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, were affirmatively demonstrated to be absent. The April 2020 VA examiner further found that the Veteran's eGFR result was 44, while normal is greater than 59. Under the Renal dysfunction criteria that went into effect as of November 14, 2021, an eGFR result of 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months warrants a 60 percent rating. As the criteria both pre-November 14, 2021 and post-November 14, 2021 for a rating in excess of 60 percent for chronic kidney disease are not met, the claim is denied. REASONS FOR REMAND 1. Service Connection for a Heart disorder The Veteran contends that he has a heart disorder as due to service. VA medical records and VA examination indicate that the Veteran has hypertension and supraventricular arrhythmia with atrial fibrillation. A VA examiner noted that the supraventricular arrhythmia with atrial fibrillation is likely (greater than 90 percent) just a function of idiopathic/aging which may be increased mostly by hypertension. Further, two private opinions dated in December 2019 and February 2019 note that diabetes is a likely contributor to coronary artery disease or is factor in the Veteran's heart disease. There were also several articles submitted along with these opinions, several with questionable relevance, but several do note that diabetes can contribute to heart disease or atrial fibrillation or is a risk factor. Given that the opinions provided lack any rationale and the medical articles do not state whether diabetes caused or aggravated any heart disorder and there is no opinion regarding aggravation, review of these articles and an opinion from a medical professional is necessary. The Board notes that the Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. In Veterans and Agent Orange: Update 11 (2018), the National Academy of Sciences (NAS), found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. Hypertension has been upgraded from its previous classification in the category of limited or suggestive evidence of an association to the category of sufficient evidence of an association. According to NAS, the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure. Under the circumstances, the Board finds that a medical opinion should be obtained. 2. TDIU prior to April 26, 2017 Prior to April 26, 2017, the Veteran did not have a service-connected disability or disabilities that met the schedular criteria of 38 C.F.R. § 4.16(a). The medical evidence indicates the Veteran ceased working in 2016 due to bilateral peripheral neuropathy. The Veteran filed a claim for an increased rating for neuropathy, received on January 12, 2017. The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Based on the above, the Board finds that there is some evidence suggesting that the Veteran's service-connected disabilities may have rendered him unable to obtain and follow substantially gainful employment prior to April 26, 2017. Thus, the issue of entitlement to TDIU prior to that date is remanded for referral in accordance with 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Obtain an opinion addressing whether the Veteran has hypertension which was at least as likely as not due to service, to include in-service herbicide agent exposure or is due to, or aggravated by, service-connected diabetes. The examiner should consider the NAS 2018 conclusion in the Veterans and Agent Orange: Update 11 (2018), that hypertension is classified in the category of sufficient evidence of an association, meaning there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide agent exposure. In formulating an opinion regarding secondary causation, consider the medical articles received on March 8, 2019. A complete rationale for all opinions provided is requested 2. Refer the Veteran's claim for TDIU prior to April 26, 2017, to VA's Director of Compensation Service for extraschedular consideration. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.