Citation Nr: 0812957 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-00 011A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus. 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from November 1963 to January 1968. This matter comes to the Board of Veterans Appeals (Board) from July 2003 and September 2004 rating decisions of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In May 2006, the Board remanded this case. In a January 2005 rating decision, the RO increased the disability ratings for service-connected peripheral neuropathy of the right and left lower extremities from 10 to 20 percent, each. In a November 2006 rating decision, the RO increased the disability rating for service-connected PTSD from 30 to 50 percent. The United States Court of Appeals for Veterans Claims ("the Court") held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet .App. 35, 38 (1993). Consequently, the matters of the evaluations remained in appellate status. FINDINGS OF FACT 1. The veteran's PTSD causes occupational and social impairment, with deficiencies in most areas, but does not result in total occupational and social impairment. 2. The veteran's peripheral neuropathy of the right lower extremity is manifested by no more than moderate disability. 3. The veteran's peripheral neuropathy of the left lower extremity is manifested by no more than moderate disability. 4. The veteran meets the schedular criteria for TDIU and the veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for PTSD are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8521-8721 (2007). 3. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8521-8721 (2007). 4. The veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claims, VCAA letters were sent in December 2002 (PTSD), December 2003 (peripheral neuropathy), and June 2004 (TDIU) satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The letters informed the claimant that additional information or evidence was needed to support the initial service connection claims and asked the claimant to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The VCAA letters, with the exception of the TDIU letter, did not provide notice of the type of evidence necessary to establish a disability rating or effective date should the claimant's claims for PTSD or peripheral neuropathy be granted. In a July 2003 rating decision (PTSD) and in a September 2004 rating decision (peripheral neuropathy), the RO initially granted the service connection claims and the current issues on appeal concerns the claim of entitlement to higher evaluations for these now service-connected disabilities. Even though the VCAA letters did not include adequate notice of what was needed to establish a disability rating and effective date, the Board finds no prejudice to the claimant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the claimant has been prejudiced thereby). In this regard, the Board observes that the VCAA notices were properly tailored to the application for the original requests for service-connected benefits. As stated above, the RO awarded service connection for PTSD and peripheral neuropathy in July 2003 and September 2004 rating decisions and ultimately have assigned an initial 50 percent rating for PTSD and 20 percent ratings, each, for peripheral neuropathy of the lower extremities, all effective from the dates of claims. Therefore, the VCAA letters served their purposes in that they provided section 5103(a) notice of the claimant; and its application is no longer required because the original claim has been "substantiated." See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the claimant's notices of disagreement (NODs), the claimant took issue with the initial disability ratings and is presumed to be seeking the maximum benefits available under the law. Id.; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A and 7105(d), the RO properly issued a statement of the case (SOC) as to each issue (in January 2004 and October 2005) which contained, in pertinent part, the pertinent criteria for establishing higher ratings. See 38 U.S.C.A. § 7105(d)(1). Thereafter, numerous supplemental statements of the case (SSOCs) were issued, the last one is dated June 2007. Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess/Hartman. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claims. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In this case, SOCs and SSOCs have been issued. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case and to the extent that the Vazquez-Flores case applies to the veteran's request for a total rating, while the VCAA notices were not compliant with the directives in Vazquez-Flores, the Board finds that any deficiency in the VCAA notice was harmless error. In this regard, the claimant was provided pertinent information in the SOCs and the SSOCs. Further, in May 2006, the claimant was furnished additional information to the claimant which complies with Vazquez- Flores. Cumulatively, the veteran was informed of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. In a May 2006 SSOC, the section entitled "Disability Rating," specifically cited to the impact on employment and described the types of evidence which would support the claim. The claimant was also told that disability rating range from zero to 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. The prior SOCs and SSOCs as well as the June 2007 SSOC were relevant to the specific pertinent diagnostic codes. Therefore, the Board finds that the claimant has not been prejudiced by insufficient notice in this case. Further, even though the VCAA notices did not make specific reference to the relevant diagnostic codes and other applicable information, particularly with regard to PTSD which was not addressed in the May 2006 SSOC, in Sanders, the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "Nothing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. The claimant demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The mere act of submitting evidence does not demonstrate actual knowledge. See Vazquez-Flores. In this case, not only was supporting evidence submitted, but the claimant and his representative have discussed the disabling level of his PTSD and its impact on his functional abilities to include industrial impairment. Further, the veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disabilities since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence which was needed to establish the claim and since VA has obtained all relevant evidence. The claimant demonstrated an understanding of the evidence required to substantiate the higher ratings sought and that higher ratings would be assigned based on the pertinent diagnostic criteria. The criteria were discussed in the SOCs and SSOCs and the claimant was told why higher ratings were not warranted under that criteria. In sum, the claimant was provided the information necessary such that any defective predecisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. Thus, the Board finds that although there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran was also sent information, as noted, regarding the appropriate disability rating or effective date to be assigned in May 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. PTSD In November 2002, the veteran's claim of service connection for PTSD was received. In conjunction with his claim, the veteran was afforded a VA examination in January 2003. At that time, it was noted that the veteran had been employed for 31 years at the same job when he retired from his employment as a technician. He was married and had three grown children. He lived with his wife and son. The veteran described having occasional interpersonal difficulties over the past 31 years and some may have been caused by his abuse of alcohol, but he was never terminated from employment. The veteran indicated that he had recurrent symptoms including intense and specific recollections as well as daily nightmares. He avoided crowds and friends. He had sleep problems and would sleep only 1-2 hours at a time. He endorsed hypervigilance and exaggerated startles response to noises as well as irritability and outbursts of anger. He had not gotten into any fights since he stopped drinking. Mental status examination revealed that the veteran was oriented and pleasant. He had good concentration and abstraction. He exhibited good recall. There was no evidence of psychosis, major depression, suicidal ideation or intent, or homicidal ideation or intent. His affect was relaxed, pleasant, and cooperative. His moor was euthymic, appropriate, and reactive. The diagnosis was PTSD and the global assessment of function (GAF) was 60. Thereafter, a statement was received from a former work colleague who indicated that he had known the veteran for 32 years. The veteran was sent home from work over the years for drinking and fighting. His temper and anger almost caused him to lose his job, not to mention lost wages. The veteran's wife and children also submitted statements which indicated that the veteran has been abusive over the years due to his drinking, moods, and angry outbursts. He would use his entire paycheck at a bar and treat his family members inappropriately. The veteran would get in many fights and caused his family to be isolated from others. The veteran received VA outpatient treatment for his PTSD. He frequently described feeling irritable and angry. He avoided public settings and would get into conflicts at home. He also endorsed sleep issues. His GAF was 50. The veteran participated in individual and group therapy as well as meditation techniques. Although he was documented as appearing friendly towards others, his mood was still angry. In July 2006, the veteran was afforded another VA examination. At that time, it was noted that the veteran had a history of three suicide attempts, the last one occurred in 1990. It was noted that the veteran had been attending individual and group therapy. He was taking psychiatric medication which was helping with his sleep difficulties as well as depression, irritability, and anxiety. However, his symptoms continued to worsen. His anger was 9 out of 10 on a scale of 1 to 10 with 10 being worse. He also had daily irritability. The veteran's wife indicated that she and the children had been afraid of him for many years and their daughter was resentful of the emotional abuse. The veteran indicated that he had one severe "blow-up" per week. When he was angry, he would initiate fights with strangers. The veteran stated that sometimes his anger was so severe, he felt that he was capable of killing someone in a fit of rage. Due to his fear of anger as well as discomfort around others, the veteran avoided contact with unknown individuals. He no longer attended public functions. The veteran admitted that he was almost fired from his prior employment several times and that he had impulsively quit due to his displeasure with a foreman because he thought that he might kill him. The veteran related that he had simply walked off the job, which is when he "retired." The veteran also stated that he had chronic problems with anxiety and depression. He suffered from survivor guilt and mistrust of others. He had many impulsive episodes where he reacted with fighting and anger. The veteran denied having psychotic symptoms, including auditory or visual hallucinations, paranoia, ideas of reference, and symptoms of thought control, however, he did have hallucinations when he had flashbacks. He slept no more than 5-6 hours per night and would have episodes where he was choking or fighting with the enemy. He experienced excessive and decreased appetite. He related that he had passing suicidal and homicidal ideation as well as serious active suicidal ideation 3-4 times per month. He denied having any intent or plan. He admitted to frequent panic attacks which occurred 3-4 times per week. The veteran related that he did not have any legal problems, but had been rejected from VA's Chapter 31 vocational rehabilitation program due to his emotional instability. The veteran did not feel that he could be employed. The veteran related that his marriage was okay and his wife had been supportive of him, despite his mistreatment and verbal abuse. He was estranged from his daughter. In addition, he felt isolated and had few friends. He did not have any hobbies or recreational interests. Mental status examination revealed that the veteran was casually dressed. His hygiene was adequate, but minimal. There were no gross abnormal movements, except for some nervous shifting. He appeared to calm fairly quickly and was pleasant and cooperative. His speech was of regular rate and rhythm and was relevant, spontaneous, and coherent. He was alert and oriented times three. His memory was intact for recent and remote. Cognition was intact. His mood was depressed and anxious as well as irritable. Affect was tense and his mood congruent, but constricted and blunted. The veteran appeared quite concrete in his thinking. He displayed impairment in impulse control as well as motivation. He had sleep impairment. There was no evidence of a formal thought disorder. Thought processes were goal- directed. Insight was limited. Judgment appeared to be fair at times when the veteran was calm and rational. He presented, however, as an individual who was capable of poor judgment and episodes of violence and agitation, particularly during periods of anger. He was also impulsive and capable of causing serious harm to himself or others in a "fit of rage." The diagnosis was PTSD, severe, and the GAF was 50. It was felt that despite medication, his PTSD had worsened over time and he was a poor candidate for employment. He would be considered a high risk for harm to himself or others due to his poor impulse control and tendencies to lash out physically when he felt threatened or in response to anger. He responded hostilely even to minor irritants. He exhibited limited coping skills and was limited in his ability to integrate his skills learned through therapy. His prognosis was guarded. In a September 2007 letter from a VA nurse and VA physician, they stated that the veteran had been a client since 2002. The veteran suffered from nightmares related to his combat experiences. He isolated himself and avoided others as he had difficulty maintaining relationships. The veteran's symptoms of depression, difficulty managing anger, irritability, anxiety, and sleep disturbances, had worsened over the past five years due to the Iraq War and "9/11" disaster. They stated that it was important to note that the veteran's conditions at times impaired his cognitive abilities and his judgment in situations when he felt threatened or unsafe. He was worse when he was exposed to reminders of traumatic experiences or faced situations in which there was potential conflict with another person. The veteran had intense and sometimes impulsive reactions which were likely to impair his ability to make rational decisions. Due to his severe PTSD, he was considered unemployable. The Board notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. The Board notes that while the veteran's GAF scores have ranged in severity, the VA evaluation reports and mental status examination show that the veteran's PTSD is severe in the level of impairment. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. A 70 percent rating is warranted because the veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas. The veteran has suicidal ideation. He does not have intent or plan. The veteran's speech is normal. The veteran has frequent panic attacks. He also has depression. Significantly, the veteran has a persistent issue with impaired impulse control as well as irritability. There is no evidence of spatial disorientation. The veteran can maintain minimal hygiene. The veteran has difficulty in adapting to stressful circumstances (including work). Although he was never terminated from employment, he lost time from work due to his anger issues. For the same reason, he has been unable to establish and maintain effective relationships. He has relationships with his family, but he has been emotionally abusive and they fear him. Based on his symptoms, he meets the criteria for a 70 percent rating. The veteran does not meet the criteria for a 100 percent rating. The veteran's PTSD has not been productive of total occupational and social impairment. The veteran does not have gross impairment in thought processes or communication. The veteran does not suffer from persistent delusions or hallucinations. His behavior is not grossly inappropriate. He has severe anger issues, but the medical reports indicate that he has been able to find safety from acting out. He is able to perform activities of daily living, including maintenance of minimal personal hygiene. The veteran is oriented to time and place. The veteran does not have memory impairment and does not have memory loss for names of close relatives, own occupation, or own name. The Board notes that the criteria for a 100 schedular percent rating are not met. He is not psychotic and is essentially cognitively intact. He can care for himself. He is able to live with others, although his relationships, though long- term, are strained. However, the Board is mindful of the fact that the medical evidence indicates that the veteran, in the interests of prudence, should not be employed due to his impulse control and anger issues. As such, as indicated below, a TDIU is being granted. Accordingly, the Board concludes that the evidence supports a 70 percent rating. Peripheral Neuropathy In January 2004, the veteran's claim of service connection was received. Thereafter, private records documented that the veteran had peripheral neuropathy. VA records documented the same. In June 2004, it was noted that the veteran's peripheral neuropathy was related to his diabetes mellitus. On examination, his dorsalis pedis posterior tibial pulses were grade 1/2 bilaterally and the Achilles reflex was grade 2/2 and equal, bilaterally. There was increased sensation to pinprick, light touch, and vibratory senses of the plantar surfaces and the feet and toes, and this extended up to the ankle area to medial/lateral malleolar areas. The veteran also had a skin disorder of the feet. Thereafter, private medical records were received which documented painful legs, severe muscle aches in his legs, skin issues, diminished sensation to light touch, and numbing and tingling of the toes and feet. In an April 2005 letter, the veteran's private physician, A.F., M.D., indicated that the veteran had increased neuropathy pain so his prescription of Neurontin had been increased. In September 2005, the veteran was afforded a VA examination. It was noted that the veteran was taking Glyburide and Metformin for his diabetes mellitus. Neurological examination revealed that cranial nerves II-XII were intact. Romberg was negative. Babinski's was downgoing. Skin was warm and dry to the touch. There was no cyanosis, pallor, or rubor. Examination of the feet revealed normal hair distribution. There were no gross deformities. Feet were cool and dry to the touch. There was decreased sensation in the plantar and dorsal aspects of both feet in a sock distribution on monofilament testing. There was also decreased sensation to vibratory sensation, bilaterally. There were no ulceration, but there were areas of calluses. The distal pulses, dorsalis pedis and posterior tibial pulses were a +1/4 and equal bilaterally. Proprioception was intact bilaterally of the great toes. Achilles deep tendon reflex was absent, bilaterally. The diagnoses were diabetes mellitus and peripheral neuropathy. In November 2005, Dr. A.F. indicated that the veteran's "ability" was limited due to diabetic neuropathy. March 2007 VA medical records indicated that the veteran had reported pain in his legs and toes that was throbbing in nature. The veteran's peripheral neuropathy of lower extremities is currently rated as 20 percent disabling, for each extremity, under 38 C.F.R. § 4.124, Diagnostic Code 8721, for neuralgia. Neuralgia, either 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. See 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Diagnostic Code 8721 provides the rating criteria for paralysis of the external popliteal nerve (common peroneal), and therefore neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8621, 8721. Complete paralysis of the common peroneal nerve, which is rated as 40 percent disabling, contemplates foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges or toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Disability ratings of 10 percent, 20 percent and 30 percent are assignable for incomplete paralysis which is mild, moderate or severe in degree, respectively. Id. A review of the record shows that the veteran's peripheral neuropathy of the right and left lower extremities is manifested by complaints of numbness and paresthesia, and objective examination has shown decreased sensation on light touch and vibratory testing, and decreased reflexes in the lower extremities. There is, however, no objective evidence of loss of range of motion, foot drop or slight droop of the first phalanges of all toes, atrophy, or other reported foot dysfunction or incoordination. As such, the impairment of the veteran's common peroneal nerve of the lower extremities is primarily sensory in nature and warrants no higher than a 20 percent rating for moderate paralysis. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8721. In order for a higher rating to be assigned, there would need to be evidence of severe incomplete paralysis, or equivalent impairment or dysfunction of the lower extremities, which has not been shown by the competent evidence of record, as described above. The Board also notes that while the veteran's level of nerve impairment in the lower extremities has not been specifically characterized by a VA physician, use of terminology such as "mild," "moderate" and "severe" by VA examiners, although an element of evidence to be considered by the Board, would not be dispositive of this appeal. 38 C.F.R. §§ 4.2, 4.6. Overall, the preponderance of the evidence is against a finding of severe incomplete paralysis of the common peroneal nerve of either lower extremity, for which a higher rating would be warranted. TDIU Total disability ratings for compensation purposes may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, when it is found that those disabilities are sufficient to produce unemployability without regard to advancing age. If unemployability is the result of a single service-connected disability, that disability must be rated at 60 percent or more. If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The veteran is service-connected for a myriad of medical problems. He is service-connected for PTSD, rated as 70 percent disabling; diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; residuals of shell fragment wound of the right hand, rated as 10 percent disabling; scar of the right hand, rated as 10 percent disabling; and hemorrhoids, rated as non- compensable. Thus, the veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a). Therefore, the issue is whether his service- connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a November 2004 letter, the veteran's private physician, A.F., M.D., stated that the veteran was unable to work due to his morbid obesity, diabetes mellitus with neuropathy, and deconditioned state. In a February 2005 letter, his physicians also indicated that the veteran additionally had osteoarthritis, hypertension, coronary artery disease, and PTSD, which rendered him unable to work. As noted above, the September 2007 letter of the VA nurse and VA physician, indicated that the veteran is unemployable due to PTSD. The veteran is retired, since 1999. He has significant nonservice-connected disabilities in addition to his service- connected disabilities, including coronary artery disease. However, in viewing the medical evidence of record, as well as the veteran's statements, the Board finds that TDIU is warranted. The veteran's PTSD alone precludes employment. He is unable to obtain or retain employment due to his impulsiveness and anger management issues. The veteran is considered a threat to himself and others in the workplace due to his PTSD. His other service-connected disabilities only worsen and complicate his ability to work. Therefore, the Board finds that the veteran is unemployable based on the nature and severity of the service-connected disabilities under consideration. Accordingly, the evidence supports a total disability rating based upon individual unemployability due to service-connected disabilities. ORDER Entitlement to a 70 percent rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, is denied. A TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs