Citation Nr: A24037726 Decision Date: 07/12/24 Archive Date: 07/12/24 DOCKET NO. 220913-276784 DATE: July 12, 2024 ORDER Entitlement to service connection for sleep apnea, on a secondary causation basis, is granted, with an evaluation of 50 percent. Entitlement to a rating in excess of 30 percent for cardiovascular disease, coronary artery disease, is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a total disability rating based upon individual unemployability is granted. FINDINGS OF FACT 1. Service connection for sleep apnea was granted on a secondary basis pursuant to aggravation, which resulted in a functional zero disability rating. 2. The evidence shows that, affording the Veteran the maximum benefit allowed under the law, sleep apnea is proximately due to service-connected diabetes mellitus Type II, and the 50 percent rating is warranted. 3. Metabolic equivalent (MET) testing shows that at a workload of 5.1-7.0 METs the Veteran's cardiovascular disease, coronary artery disease, results in heart failure symptoms, but no such symptoms at a workload of 5.0 METs or less. 4. The Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin/an oral glycemic agent during the period on appeal. 5. The Veteran's left lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 6. The Veteran's right lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 7. The Veteran's right upper extremity peripheral neuropathy is manifest by no more than mild incomplete paralysis of the major extremity. 8. The Veteran is already in receipt of the highest schedular rating for tinnitus and has not shown evidence to justify an extraschedular rating. 9. The Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a rating in excess of 30 percent for cardiovascular disease, coronary artery disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005. 3. The criteria for a disability rating in excess of 20 percent for diabetes mellitus 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 disability rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. 7. The criteria for entitlement to an evaluation greater than of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. 8. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2021 and May 2022 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2022, the Veteran appealed both decisions to the Board via a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Veteran requested the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2021 and May 2022 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Sleep Apnea The Veteran's sleep apnea was granted service connection based upon aggravation by a May 2022 rating decision. In so granting. the RO found that the Veteran's sleep apnea would be rated at 50 percent but that all 50 percent of the Veteran's possible rating was the result of the aggravation from the Veteran's service-connected disabilities, which resulted in a functional rating of 0 percent. The Veteran appealed this finding and is seeking sleep apnea on a secondary basis pursuant to causation, and requesting the 50 percent rating. As the 50 percent rating is not in question, the issue before the Board is if the sleep apnea can be service connected on a secondary basis rather than an aggravation only basis. The Board finds that it can. First, there is evidence of a current disability. The Veteran underwent a sleep study in September 2008 which diagnosed the Veteran with severe sleep apnea. Therefore, the first element of secondary service connection has been met. Second, the Veteran is service connected for diabetes mellitus and therefore, the second element of secondary service connection has been met. Therefore, the only issue before the Board is if there is a nexus of evidence establishing a connection between the two disabilities. In March 2019, the Veteran was seen with complaints of fatigue and a lack of energy for the past year. The Veteran was using a CPAP for his sleep apnea but remained tired in the mornings. In January 2022, a VA examination was completed. This examiner found that the Veteran's sleep apnea had been aggravated by the diabetes. The specific language used by the examiner also noted that the mechanisms involved with the development and course of diabetes mellitus Type II increase not just the worsening of obstructive sleep apnea, but also the risk. The examiner also noted that the Veteran required use of a CPAP for treatment of the sleep apnea. The VA examiner explained that central obesity is a common finding with individuals diagnosed with diabetes mellitus Type II and notes that the overproduction of insulin can ultimately lead to weight gain. The examiner then noted that the Veteran had undergone two periods of significant weight gain following his diabetes diagnosis. From 1995-2008 the Veteran gained 65 pounds and then in the past four months the Veteran has gained an additional 13 pounds. No explicit secondary service connection opinion was provided. In April 2022, a VA examiner provided a negative secondary service connection opinion by noting that while numerous studies have shown an association between OSA and diabetes, a causal relationship has not been shown. Association does not equal causation. Along with his September 2022 appeal to the Board, the Veteran noted that as a result of his diabetes diagnosis he has had two periods of significant weight gain. From 1995-2008 he gained 65 pounds and then in the previous four months he had gained 13 pounds. This was discussed by the January 2022 VA examiner. In September 2022, during the evidentiary window, the Veteran submitted a copy of an August 2022 sleep apnea DBQ. The examiner found it more likely than not that the Veteran's obstructive sleep apnea was caused by his diabetes and his obesity. The examiner spoke with the Veteran and discussed the two periods of weight gain noted earlier in this decision. The examiner argued that sleep apnea and diabetes are often comorbid conditions, and that research shows there is a high prevalence of sleep apnea in diabetic patients. The examiner disagreed with previous opinions that the obstructive sleep apnea was not caused by the Veteran's diabetes. The examiner concluded that due to the date of the Veteran's diabetes diagnosis as well as the significant weight gain after this period but before the obstructive sleep apnea diagnosis, the diabetes was the cause of the weight gain. The examiner also indicated that the Veteran had not been able to lose any weight due to an inability to exercise as a result of his service-connected disabilities. The side effects of the Veteran's insulin injections were also noted to include weight gain. Based upon these findings, the examiner concluded that the Veteran's obstructive sleep apnea was more likely than not caused by his diabetes as well as his obesity. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The evidence of record shows that the Veteran has undergone two periods of weight gain that the September 2022 private examiner linked to the Veteran's diabetes diagnosis and insulin injections. This same examiner provided a positive secondary opinion showing that obstructive sleep apnea was caused by the Veteran's service connected diabetes mellitus Type II. Providing the benefit of the doubt to the Veteran and the greatest benefit allowable under the law, his sleep apnea is at least as likely as not secondary to his service-connected diabetes mellitus on a causation, not an aggravation, basis. Therefore, the Board finds that the evidence for and against the claim is in approximate balance. Accordingly, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to secondary service connection sleep apnea at 50 percent is warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. VA is responsible for determining whether the evidence supports the claim or is evenly balanced, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505(2007). The Veteran's disability is viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. Coronary Artery Disease A December 2018 rating decision initially granted the Veteran a 10 percent rating for his coronary artery disease (CAD). However, clear and unmistakable error was found in this decision and a January 2019 rating decision granted a 30 percent rating. The Veteran was informed of this decision via February 4, 2019, correspondence. In January 2020, the Veteran filed a claim for an increased rating. Therefore, this claim for an increased rating has been continuously pursued as the Veteran filed his appeal within one year of the rating decision. The Veteran's coronary artery disease is rated under 38 C.F.R. § 4.104, DC 7005. The criteria for rating cardiovascular disabilities were amended during the period on appeal, effective November 14, 2021. See Schedule for Rating Disabilities: The Cardiovascular System, 86 Fed. Reg. 54,089 (Sept. 30, 2021). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the current claim under the criteria prior to November 14, 2021, and both the former and new rating criteria from November 14, 2021. The criteria that is more favorable to the Veteran will be applied. Under the pre-amended version of DC 7005, a 10 percent rating is warranted where workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. 38 C.F.R. § 4.104, DC 7005 (in effect prior to November 14, 2021). A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted where there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Under the revised regulations, coronary artery disease is rated under the General Rating Formula to Evaluate Diseases of the Heart (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where a workload of 7.1 to 10.0 METs results in heart failure symptoms; or continuous medication is required for control. 38 C.F.R. § 4.104, DC 7005 (in effect since November 14, 2021). A 30 percent rating is warranted where a workload of 5.1 METs to 7.0 METs results in heart failure symptoms; or if there is evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). Id. A 60 percent rating is warranted where a workload of 3.1 METs to 5.0 METs results in heart failure symptoms. Id. A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. Id. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that the evidence does not warrant a rating in excess of 30 percent based upon either rating criteria. The Veteran's claim for an increased rating for coronary artery disease was received on January 19, 2020. Following the Veteran's January 2020 claim for an increased rating, a private disability benefits questionnaire (DBQ) was submitted. The February 2020 DBQ diagnosed the Veteran with atherosclerotic cardiovascular disease, CAD, a heart block, and nonrheumatic mitral valve insufficiency. The Veteran indicated he was taking asprin as treatment. There was no evidence of congestive heart failure, no acute congestive heart failure, and no myocardial infarction. There was no METs testing provided. In July 2020, a VA examination was completed. The examiner provided diagnoses of CAD, a heart block, valvular heart disease, implanted cardiac pacemaker, and cardiovascular disease. The Veteran reported several episodes of blacking out and just overall just feeling bad. This ultimately led to the Veteran being hospitalized, the blockage being discovered, and the pacemaker being placed. The Veteran denied chest pain but did note some shortness of breath on exertion. There was no congestive heart failure and no myocardial infarction noted. A January 2020 echocardiogram was noted as showing a left ventricular ejection fraction of 60 percent. This is above the threshold for an increased rating beyond 30 percent as noted above. Interview based METs testing was completed and showed that the Veteran experienced dizziness and dyspnea between 7-10 METs. There is no evidence in the Veteran's medical file or from the VA examiners or private DBQs to justify a rating in excess of 30 percent for CAD. The Veteran's medical history does not show a workload of 3.1-5.0 METs results in heart failure symptoms, nor does the record show that there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, an increased beyond 30 percent is not warranted and the increased rating claim must be denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's 30 percent rating is proper. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. 2. Diabetes Mellitus A March 2017 RO decision granted the Veteran service connection at 20 percent for his diabetes mellitus, with diabetes mellitus and retinopathy. In November 2017, the Veteran sought an increased rating. A May 2018 RO decision denied an increased rating. The Veteran filed a new increased rating claim in August 2018 which was again denied by a December 2018 rating decision. This decision was not appealed and became final. In January 2020, the Veteran filed an increased rating claim for his diabetes seeking a rating in excess of 20 percent. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). The applicable effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997). The Federal Circuit reaffirmed that "the plain language of [section] 5110(b)(2)... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). In other words, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Diabetes is rating under DC 7913 which 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 for diabetes mellitus which is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injections 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 injections 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 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 per 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 DC 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). The March 2017 rating decision granted service connection and assigned a 20 percent rating for diabetes under DC 7913. The RO stated that this rating was based on required use of insulin (more than 1 injection daily), oral hypoglycemic agent required, and a restricted diet. An additional symptom of progressive loss of weight and strength was also noted. A July 2020 VA examination was completed following the Veteran's claim for an increased rating beyond 20 percent. The examiner noted that the Veteran's current treatment included a prescribed oral hypoglycemic agent, more than one insulin injection required per day, Metformin, Lantus, and Novolg. There was no indicated of progressive unintentional weight loss and loss of strength that could be attributed to the Veteran's diabetes. The Veteran's diabetes was not being treated with a restricted diet. Further, the Veteran did not require regulation of activities as part of the medical management of his diabetes. The Veteran visited his diabetic care provider less than twice a month for episodes of ketoacidosis. There had been zero hospitalizations for this in the past 12 months. To receive a rating of 40 percent, the next highest rating, the Veteran's diabetes would need to be treated by one or more daily injections of insulin, restricted diet, and regulation of activities. The important element is that the 40 percent rating requires all three of these elements to be present. As noted above, at the most recent VA examination only one of these elements has been met. There is no evidence of use of a restricted diet or regulation of activities. A previous VA examination in March 2017 shows treatment with restricted diet. However, a review of the Veteran's file fails to show a finding that his diabetes has been treated with regulation of activities. In addition to the July 2020 examiner failing to find this, it was also noted as not appropriate in a June 2017 DBQ, a March 2017 VA examination, a February 2018 VA examination, and a September 2018 VA examination. Accordingly, a rating in excess of 20 percent for the Veteran's diabetes is not warranted and the claim for an increased rating is therefore denied. The Board takes note that there are additional disabilities associated with the Veteran's diabetes. However, as discussed in further detail below, the Veteran is in receipt of separate ratings for his right upper extremity and bilateral lower extremity neuropathy. As for the associated erectile dysfunction, the question is whether the Veteran may receive a separate compensable rating. To be rated as compensable, evidence must show deformity of the penis in addition to loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522. The Veteran did not report any deformity of his penis. Medical records do not show any finding of deformity of penis. See June 2017 DBQ, March 2017 VA examination, February 2018 VA examination, September 2018 VA examination, and July 2020 VA Examinations. As such, Veteran's erectile dysfunction does not warrant a compensable rating. The Board also notes that he is currently in receipt of SMC for loss of use a creative organ. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's 20 percent rating is proper. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. 3. Left and Right Lower Extremity Peripheral Neuropathy The Veteran was granted separate ratings of 20 percent for each the left and right lower extremity peripheral neuropathy by a March 2017 rating decision. The Veteran appealed for an increased rating and was denied by a May 2018 rating decision. The Veteran appealed for increased ratings for his diabetes mellitus and cardiovascular disease in August 2018. However, this appeal was broadened to include the peripheral neuropathy as it was associated with the Veteran's diabetes mellitus. A December 2018 rating decision denied increased ratings for both the left lower extremity and the right lower extremity. A January 2019 rating decision confirmed this denial of an increased rating. The Veteran was informed of this decision via February 4, 2019, correspondence. In January 2020, the Veteran filed a claim for an increased rating. Therefore, this claim for an increased rating has been continuously pursued as the Veteran filed his appeal within one year of the rating decision. The Veteran's left lower extremity and right lower extremity 20 percent ratings were based on a finding of moderate incomplete paralysis of the sciatic nerve. The Veteran filed his claim for an increased rating beyond 20 percent for bilateral extremity peripheral neuropathy in January 2020. As these conditions have been examined by the same VA examiners, they will be discussed together. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Evaluations of 10, 20, 40, and 60 percent, respectively, are assigned for mild, moderate, moderately severe, and severe, incomplete paralysis. An evaluation of 80 percent is assigned for complete paralysis causing the foot to dangle and drop with no active movement possible of muscles below the knee. Id. 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. In July 2020, following the filing of his claim for an increased rating, the Veteran underwent a VA examination for his peripheral neuropathy. The Veteran stated his contention that his condition had worsened since its onset in 2005. The findings of the left lower extremity and right lower extremity were identical and will be discussed together. The Veteran was noted as right hand dominant. There was constant pain of the bilateral lower extremities noted as mild in nature. There was no intermittent pain found. The bilateral lower extremities were noted as suffering from both mild numbness and paresthesias and/or dysesthesias. Reflexes were found to be normal. There was some decreased light touch and cold sensation in the foot/toes and bilateral lower extremity respectively. There was no muscle atrophy. There was a loss of some lower extremity hair along with the peripheral neuropathy. Both the right and left lower extremity were found to be suffering from mild incomplete paralysis of the sciatic nerve. The findings of the VA examiner do not indicate that the Veteran's condition would be described as moderately severe or worse. The pain, numbness, paresthesias and/or dysesthesias, and the incomplete paralysis being described as mild. Therefore, the Veteran does not meet the rating criteria for a rating in excess of 20 percent and the claim for an increased rating is denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's 20 percent rating is proper. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. 4. Right Upper Extremity Peripheral Neuropathy The Veteran's original claim was received in July 2016, but the March 2017 rating decision initially denied service connection. The November 2017 claim for an increased rating for diabetes mellitus was broadened to include the Veteran's right upper extremity peripheral neuropathy claim. The Veteran was granted a 10 percent rating for the right upper extremity peripheral neuropathy by a May 2018 rating decision. The Veteran appealed for increased ratings for his diabetes mellitus and cardiovascular disease in August 2018. However, this appeal was broadened to include the peripheral neuropathy as it was associated with the Veteran's diabetes mellitus. A December 2018 rating decision denied and increased rating for the right upper extremity. A January 2019 rating decision confirmed this denial of an increased rating. The Veteran was informed of this decision via February 4, 2019, correspondence. In January 2020, the Veteran filed a claim for an increased rating. Therefore, this claim for an increased rating has been continuously pursued as the Veteran filed his appeal within one year of the rating decision. The Veteran's 10 percent rating was based on a finding of mild nerve damage. The Veteran filed his claim for an increased rating beyond 20 percent for right upper extremity peripheral neuropathy in January 2020. Under Diagnostic Code 8516, incomplete paralysis of the ulnar nerve is evaluated as 10, 30, and 40 percent disabling for the major extremity if mild, moderate, or severe, respectively. Incomplete paralysis of the ulnar nerve is evaluated as 10, 20, and 30 percent disabling for the minor extremity if mild, moderate, or severe, respectively. Complete paralysis is evaluated as 60 percent for the major extremity and 50 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8516. The Veteran is right-handed and so his right upper extremity peripheral neuropathy is rated as a major extremity. In July 2020, following the filing of his claim for an increased rating, the Veteran underwent a VA examination for his peripheral neuropathy. The Veteran stated his contention that his condition had worsened since its onset in 2005. The Veteran was noted as right hand dominant. There was constant pain of the right upper extremity noted as mild in nature. There was no intermittent pain found. The right upper extremity was noted as suffering from both mild numbness and paresthesias and/or dysesthesias. Reflexes were found to be normal. There was no muscle atrophy. The right upper extremity was found to be suffering from mild incomplete paralysis of the ulnar nerve. The findings of the VA examiner do not indicate that the Veteran's condition would be described as moderately severe or worse. The pain, numbness, paresthesias and/or dysesthesias, and the incomplete paralysis being described as mild. Therefore, the Veteran does not meet the rating criteria for a rating in excess of 10 percent and the claim for an increased rating is denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's 10 percent rating is proper. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. 5. Tinnitus The Veteran contends that a rating greater than 10 percent is warranted for his tinnitus. Under the Diagnostic Code, the maximum schedular evaluation for tinnitus is 10 percent. 38 C.F.R. § 4.87. Note 2 to the Diagnostic Code further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the Veteran has been assigned the maximum schedular rating for tinnitus since the date of the initial claim, the Board finds there is no legal basis upon which to award a higher schedular evaluation. As such, entitlement to a rating greater than 10 percent for tinnitus is not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran has not submitted any evidence to suggest that an extraschedular rating would be needed. The Veteran received a VA examination in August 2020. He described his tinnitus as intermittent high-pitched squealing that occurs a couple times per week and lasts between 15-20 minutes each time. This does not meet the criteria for an extraschedular rating. Thus, the appeal for an increased rating for tinnitus is denied. Entitlement to a TDIU The Veteran contends that the combination of his service-connected disabilities has rendered him unable to obtain and maintain substantially gainful employment. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on their ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16(a). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in and of itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341(a), 4.16, 4.19. Van Hoose, 4 Vet. App. at 363. A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran has a combined rating of 70 percent effective November 17, 2017. The Board takes note that the Veteran's diabetes and peripheral neuropathy ratings combine to equal a 70 percent rating. Therefore, the Veteran meets the criteria for a TDIU as of this date. This combined 70 percent rating includes; 30 percent for CAD, 20 percent for diabetes, 20 percent for right lower extremity peripheral neuropathy, 20 percent for left lower extremity peripheral neuropathy, 20 for left upper extremity peripheral neuropathy, 10 percent for right upper extremity peripheral neuropathy, 10 percent for tinnitus, noncompensable for bilateral hearing loss, and noncompensable for hypertension. The Veteran has submitted multiple VA Form 21-8940s related to his application for a TDIU. The first was received in November 2017. The Veteran states that he last worked full time February 1, 2010, and that he became too disabled to work January 3, 2017. In August 2018, an additional 21-8940 was received which included that the Veteran had completed two years of college and had no other training or education. A July 2020 version changed this to one year of college but also noted that after his prior company closed, he looked for work in construction, but found that no one wanted to hire a diabetic in that field. The Veteran's personal physician submitted a June 2018 opinion that the Veteran was unemployable as a result of his service-connected disabilities. In September 2018, a VA examiner's opinion on TDIU was received. The examiner found that none of the Veteran's conditions would likely impact the Veteran's ability to obtain and maintain substantially gainful sedentary employment. This was reiterated by a VA examiner in August 2020 who found that the Veteran's service-connected disabilities would cause no restrictions on his job activities. The Board finds this difficult to believe given the myriad of issues and the Veteran's complaints. In September 2022, the Veteran submitted a lay statement related to his TDIU claim. He indicated that these conditions have interfered with his ability to remain in the workforce as well as his quality of life. The last place the Veteran worked was a utility service company as a liaison. There was no physical labor involved. The Veteran retired and the company has since closed down. The Veteran complained of only being able to walk and sit for short amounts of time. Along with his September 2022 appeal to the Board, the Veteran submitted a private TDIU opinion. The examiner concluded that the Veteran was unemployable. The examiner provided a thorough review of the Veteran's medical history and discussed the findings of his various private and VA examinations. The examiner determined that the Veteran would be unable to stand for 10 minutes without needing to lean on something due to shortness of breath and fatigue, poor balance, and numbness of lower extremities. Additionally, the Veteran would only be able to walk for 15 minutes slowly and unassisted due to SOB, fatigue, foot pain and numbness. The examiner also noted that the Veteran would have limitations including an inability to lift or carry more than 10 pounds to his bilateral peripheral neuropathy causing weakness of his upper extremities. Regarding sedentary employment, the examiner noted that the Veteran would be unable sit for longer than 25 minutes before needing to get up and move around due to numbness and tingling in his feet as a result of the peripheral neuropathy. As a result of all of these limitations, the examiner found it probable that the Veteran would require extra breaks, would miss multiple days of work, and overall was simply not employable. The Board finds this private examiner's opinion to be the most probative evidence on record. The examiner completed a thorough review and an in-depth discussion of all of the Veteran's treatment records and examinations. The examiner provided a complete discussion of the ways in which his various service-connected disabilities would result in the Veteran being unable to work. The Board finds that the service-connected conditions, largely the peripheral neuropathy and the CAD, have made the Veteran unable to obtain or maintain substantially gainful employment. As a result, the Veteran has met the criteria for an extraschedular TDIU effective November 17, 2017. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Sleep Apnea The Veteran's sleep apnea was granted service connection based upon aggravation by a May 2022 rating decision. The RO found that the Veteran's sleep apnea would be rated at 50 percent but that all 50 percent of the Veteran's possible rating was the result of the aggravation from the Veteran's service-connected disabilities. Therefore, the Veteran was granted service connection at the noncompensable rating. The Veteran appealed this finding and is seeking sleep apnea on a secondary basis and the 50 percent rating. As the 50 percent rating is not in question, the issue before the Board is if the sleep apnea can be service connected on a secondary basis rather than an aggravation only basis. The Board finds that it can. First, there is evidence of a current disability. The Veteran underwent a sleep study in September 2008 which diagnosed the Veteran with severe sleep apnea. Therefore, the first element of secondary service connection has been met. Second, the Veteran is service connected for diabetes mellitus and therefore, the second element of secondary service connection has been met. Therefore, the only issue before the Board is if there is a nexus of evidence establishing a connection between the two disabilities. In March 2019, the Veteran was seen with complaints of fatigue and a lack of energy for the past year. The Veteran was using a CPAP for his sleep apnea but remained tired in the mornings. In January 2022, a VA examination was completed. This examiner found that the Veteran's sleep apnea had been aggravated by the diabetes. The specific language used by the examiner also noted that the mechanisms involved with the development and course of diabetes mellitus Type II increase not just the worsening of obstructive sleep apnea, but also the risk. The examiner also noted that the Veteran required use of a CPAP for treatment of the sleep apnea. The VA examiner explained that central obesity is a common finding with individuals diagnosed with diabetes mellitus Type II and notes that the overproduction of insulin can ultimately lead to weight gain. The examiner then noted that the Veteran had undergone two periods of significant weight gain following his diabetes diagnosis. From 1995-2008 the Veteran gained 65 pounds and then in the past four months the Veteran has gained an additional 13 pounds. No explicit secondary service connection opinion was provided. In April 2022, a VA examiner provided a negative secondary service connection opinion by noting that while numerous studies have shown an association between OSA and diabetes, a causal relationship has not been shown. Association does not equal causation. Along with his September 2022 appeal to the Board, the Veteran noted that as a result of his diabetes diagnosis he has had two periods of significant weight gain. From 1995-2008 he gained 65 pounds and then in the previous four months he had gained 13 pounds. This was discussed by the January 2022 VA examiner. In September 2022, during the evidentiary window, the Veteran submitted a copy of an August 2022 sleep apnea DBQ. The examiner found it more likely than not that the Veteran's obstructive sleep apnea was caused by his diabetes and his obesity. The examiner spoke with the Veteran and discussed the two periods of weight gain noted earlier in this decision. The examiner argued that sleep apnea and diabetes are often comorbid conditions, and that research shows there is a high prevalence of sleep apnea in diabetic patients. The examiner disagreed with previous opinions that the obstructive sleep apnea was not caused by the Veteran's diabetes. The examiner concluded that due to the date of the Veteran's diabetes diagnosis as well as the significant weight gain after this period but before the obstructive sleep apnea diagnosis, the diabetes was the cause of the weight gain. The examiner also indicated that the Veteran had not been able to lose any weight due to an inability to exercise as a result of his service-connected disabilities. The side effects of the Veteran's insulin injections were also noted to include weight gain. Based upon these findings, the examiner concluded that the Veteran's obstructive sleep apnea was more likely than not caused by his diabetes as well as his obesity. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The evidence of record shows that the Veteran has undergone two periods of weight gain that the September 2022 private examiner linked to the Veteran's diabetes diagnosis and insulin injections. This same examiner provided a positive secondary opinion showing that obstructive sleep apnea was caused by the Veteran's service connected diabetes mellitus Type II. Providing the benefit of the doubt to the Veteran and the greatest benefit allowable under the law, his sleep apnea is at least as likely as not secondary to his service-connected diabetes mellitus on a causation, not an aggravation, basis. Therefore, the Board finds that the evidence for and against the claim is in approximate balance. Accordingly, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to secondary service connection sleep apnea at 50 percent is warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.