Citation Nr: 1031279 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-28 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent from May 8, 2001 to January 6, 2005, and a disability rating higher than 20 percent from January 7, 2005 for diabetes mellitus. 2. Entitlement to an initial compensable disability rating for erectile dysfunction. 3. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes. 5. Entitlement to service connection for a bilateral knee disability. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from June 2002 and April 2003 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the June 2002 rating decision, the RO, in part, granted service connection for diabetes at a 10 percent disability rating effective, July 9, 2001, continued a 10 percent disability rating for PTSD and denied entitlement to service connection for a bilateral knee disability on the basis that new and material evidence had not been submitted. The April 2003 rating decision, in part, granted service connection for erectile dysfunction at an initial 0 percent disability rating effective December 6, 2002, granted an effective date of May 8, 2001 for the award of service connection for diabetes mellitus and denied entitlement to service connection for hypertension. In a March 2007 decision, the Board reopened the claim for entitlement to service connection for a bilateral knee disability and remanded the remaining claims for additional development. In an April 2010 rating decision, during the pendency of this appeal, the RO granted an initial higher disability rating of 20 percent for diabetes mellitus, effective January 7, 2005 and an increased rating of 50 percent for PTSD, effective January 14, 2004. As higher schedular evaluations for these disabilities are possible, the issues of entitlement to a rating in excess of 20 percent for diabetes mellitus and a rating in excess of 50 percent for PTSD remain before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Of preliminary importance, because the claims for a higher rating for the Veteran's service-connected diabetes mellitus and erectile dysfunction involve requests for higher ratings following the grant of service connection, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for a previously service- connected disability). The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has essentially asserted that he not employable solely by reason of his service-connected disabilities. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to January 7, 2005, the medical evidence demonstrates that diabetes mellitus had been controlled with restricted diet; there is no objective medical evidence that the Veteran had been prescribed insulin or an oral hypoglycemic agent. 2. Since January 7, 2005, the medical evidence demonstrates that diabetes mellitus has been controlled with oral hypoglycemic agents and a restricted diet. There is no medical evidence of required restrictions on his activities due to diabetes, or any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. 3. Erectile dysfunction is manifested by evidence of a loss of erectile power with no penile deformity. 4. The Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as sleep problems, irritability, angry outbursts and depression but without obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affected the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation and neglect of personal appearance and hygiene. 5. Hypertension is reasonably shown to be aggravated by service- connected diabetes mellitus. 6. Bilateral knee degenerative arthritis was not present in service or manifested in the first post service year, and is not shown to be etiologically related to service, to include as secondary to service-connected scars of the right and left leg due to shrapnel wounds. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for diabetes mellitus prior to January 7, 2005 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). 2. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus from January 7, 2005 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). 3. The criteria for entitlement to an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.115b, Diagnostic Code 7599-7522 (2009). 4. The criteria for the assignment of an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130 Diagnostic Code 9411 (2009). 5. The criteria for service connection for hypertension on a secondary basis are met. See 38 U.S.C.A. § 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2009). 6. Bilateral degenerative arthritis was not incurred in or aggravated by active duty, and service incurrence of arthritis of the left knee may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the Veteran's claim for service connection for hypertension to include as secondary to service-connected diabetes, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claim for service connection for hypertension, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the remaining increased rating and service connection claims, the RO provided notice to the Veteran in April 2007and April 2008 letters that explained what information and evidence was needed to substantiate a claim for service connection and increased ratings as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the April 2007and April 2008 letters, and opportunity for the Veteran to respond, the April 2010 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, he was afforded VA examinations in May 1990, November 2001, July 2003, January 2004, September 2009, October 2009 and December 2009 that were fully adequate for the purposes of rendering this decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulation- Higher Ratings Disability ratings are determined by applying the criteria set forth in the 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.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2009). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2009). In addition, where there is a question as to which of two disability evaluations should be applied, 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. See 38 C.F.R. § 4.7 (2009). The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 791 3 Diabetes mellitus Ratin g Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 100 Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated 60 Requiring insulin, restricted diet, and regulation of activities 40 Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 Manageable by restricted diet only 10 Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). Factual Background and Analysis As noted above, in the June 2002 rating decision, the RO granted service connection and assigned an initial 10 percent rating for diabetes mellitus, effective July 9, 2001. An April 2003 revised the effective date to May8, 2001. In an April 2010 rating decision, the RO granted an initial higher disability rating of 20 percent for diabetes mellitus, effective January 7, 2005. The Veteran underwent a VA examination in November 2001. The Veteran reported being prescribed glipizide but was taken off it in March 2001. He continued to comply with his diabetic diet and a walking regimen, and lost weight. The Veteran underwent a VA diabetes mellitus examination in January 2004. He reported that since the onset of his diabetes, he had restricted his diet and lost 30 pounds. He had not had any ketoacidosis or hyperglycemic episodes or hospitalizations secondary to his diabetes. He did not feel restricted in his activities. He did not take any medications for his diabetes and saw his primary care physician once every 3 to 4 months. A January 2004 VA treatment note reflected that the Veteran's medications were nortryptiline(an antidepressant), betamethasone dipropionate (for skin condition), irbesartan (for hypertension) and ibuprofen. A May 2005 VA treatment note indicated that the Veteran had diabetes without retinopathy. The Veteran was taking Rosiglitazone for his diabetes. In an April 2007 letter, the Veteran's private doctor noted that on a physical in March 2001, it was noted that his diabetes was treated with Amaryl. The Veteran underwent a VA examination in October 2009. The Veteran had a restricted diet and was prescribed glucophage, pioglitazone and glipizide. There were no ketoacidosis or hypoglycemic episodes. The diagnosis was Type II diabetes mellitus with no complication of retinopathy, cerebrovascular disease, coronary artery disease, nephropathy, peripheral vascular disease or skin abnormality. Concerning the period prior to January 7, 2005, the aforementioned evidence reflects that the medical evidence provides no basis for assignment of an initial rating in excess of 10 percent for diabetes mellitus. While the Veteran's diabetes mellitus prior to January 7, 2005 required a restricted diet, there is no medical evidence that he had required insulin or an oral hypoglycemic agent. While the Veteran's private doctor in an April 2007 letter noted that the Veteran was treated with Amaryl in March 2001, the Veteran reported during his November 2001 VA medical examination that he was taken off medications in March 2001, and records from the period of May 8, 2001 to January 6, 2005 are entirely negative for evidence of required insulin or an oral hypoglycemic agent. Additionally, no other compensable complications from diabetes mellitus are documented in the medical evidence. Rather, a January 2004 VA eye examiner specifically stated that there was no evidence of any diabetic retinopathy. The Board also notes that the Veteran is already service connected for erectile dysfunction due to his diabetes mellitus. Consequently, the assignment of a separate disability rating for any other condition is not warranted under 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Therefore, an initial rating in excess of 10 percent for diabetes mellitus for the period prior to January 7, 2005 is not warranted. As the criteria for a 20 percent rating are not met, it logically follows that the criteria for a rating higher than 20 percent are not met for the period prior to January 7, 2005. Concerning the period beginning January 7, 2005, the objective medical evidence shows that the Veteran's service-connected diabetes mellitus requires oral medication and a restricted diet. However, the competent medical evidence of record does not reflect that the Veteran's diabetes mellitus requires "regulation of activities", defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities". The Board points out that the requirement that diabetes mellitus necessitates regulation of activities is a primary factor distinguishing a 40 percent rating from the 20 percent evaluation under Diagnostic Code 7913. It logically follows that the Veteran also lacks those factors that are criteria for a rating higher than 40 percent (episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations for diabetic care, visits at least twice monthly to a diabetic care provider, etc.). In addition, the Board notes that the Veteran is already service connected for erectile dysfunction, peripheral neuropathy and erectile dysfunction due to his diabetes mellitus. The Veteran does not have any additional compensable diabetic complications such as diabetic retinopathy, skin symptoms or peripheral vascular disease. Consequently, the assignment of a separate disability rating for any other condition is not warranted under 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Finally, the Board has considered whether "staged" ratings are appropriate. See Fenderson, supra. The record, however, does not support assigning different percentage disability ratings during the period in question. Erectile Dysfunction Rating The Veteran is assigned an initial noncompensable rating for his service-connected erectile dysfunction disability pursuant to 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 (2009). The Board notes that the Veteran was granted entitlement to special monthly compensation for loss of use of a creative organ by the RO in April 2010, pursuant to 38 C.F.R. § 3.350, which provides that compensation may be granted for the loss of use of a creative organ resulting from wounds or other trauma sustained in service. Erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. The Veteran's erectile dysfunction has been rated as follows: 752 2 Penis, deformity, with loss of erectile power 201 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2009) 752 3 Testis, atrophy complete: Both 201 One 0 38 C.F.R. § 4.115b, Diagnostic Code 7523 (2009) Factual Background and Analysis The Veteran underwent a VA examination in January 2004. On examination, he had decreased size of his testicles. His penis was nontender without any ulcers or masses on the testicles or penis. There was some mild atrophy of the testicles. The diagnosis was sexual dysfunction. The Veteran underwent a VA examination in September 2009. On examination, the Veteran's penis and testicles were grossly normal. The diagnosis was erectile dysfunction. The examiner noted that the Veteran had an inability to obtain an erection and had factually lost the use of a creative organ. On VA examination for diabetes in October 2009, the examiner noted that the Veteran had complete erectile dysfunction. The evidence of record clearly shows a history of erectile dysfunction. The question is whether the Veteran is entitled to a 20 percent evaluation under Code 7522, which entails both loss of erectile power and deformity of the penis. The Veteran's claim for a compensable rating for erectile dysfunction must denied because at no time do any treatment records show any deformity of the penis, one of the two elements required for a compensable rating for erectile dysfunction. Specifically, VA examinations in January 2004 and September 2009 indicated that the Veteran's penis was normal. The Board notes that under Diagnostic Code 7523, complete atrophy of one testicle warrants a noncompensable rating. Complete atrophy of both testicles warrants a 20 percent rating, with consideration for special monthly compensation. 38 C.F.R. § 4.115(b) (2009). However, while mild atrophy of the testicles was noted on the January 2004 VA examination, the testicles were noted to be normal on the most recent examination in September 2009. As noted above, for a 20 percent evaluation, there would have to be complete atrophy of both testicles. For all the foregoing reasons, the claim for a compensable schedular rating for erectile dysfunction must be denied. Finally, the Board has considered whether "staged" ratings are appropriate. See Fenderson, supra. The record, however, does not support assigning different percentage disability ratings during the period in question. PTSD General Rating Formula for Mental Disorders: Ratin g 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 100 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 70 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 50 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 38 C.F.R. § 4.130 (2009) The Board notes that in accordance with the General Rating Formula for Mental Disorders, a 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the Rating Formula lists specific symptoms that are indicative of total impairment, the United States Court of Appeals for Veterans Claims has held that the symptoms listed in the Rating Formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability VA is required to consider all symptoms that affect social and occupational functioning, and not limit consideration to those symptoms listed in the Rating Formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the veteran demonstrates those symptoms listed in the Rating Formula. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)). 60 ? ? 51 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.,