Citation Nr: 1036670 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 07-13 668A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability rating for PTSD, currently evaluated as 70 percent disabling. 2. Entitlement to an increased disability rating for diabetes mellitus, type II, currently evaluated as 20 percent disabling. 3. Entitlement to service connection for hypertension, to include as secondary to the Veteran's service-connected diabetes mellitus, type II, or in the alternative, secondary to the Veteran's service-connected post traumatic stress disorder (PTSD). 4. Entitlement to a total rating based on individual unemployability (TDIU) prior to September 11, 2008. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD LouElla Kuta, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1969. He received the Combat Infantryman Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied in pertinent part, the Veteran's claims of entitlement to service connection for hypertension, increased ratings for PTSD and diabetes mellitus type II, and TDIU. In a December 2006 decision, the Board denied the Veteran's claims of entitlement to service connection for a status post vascular occlusion of the legs bilaterally and for a status post cerebral vascular accident. The Board remanded the Veteran's claims of coronary artery disease, for further development; and remanded the issues of entitlement to service connection for hypertension, and increased ratings for PTSD and diabetes mellitus type II for issuance of a statement of the case in response to the Veteran's notice of disagreement. In a June 2008 decision the Board denied the Veteran's claim of entitlement to service connection for coronary artery disease. The Board also determined that the hypertension, PTSD and diabetes mellitus issues were not before it, because the record did not contain a timely substantive appeal. After the Board's decision, evidence was associated with the claims folder showing that the Veteran had submitted a timely substantive appeal with regard to the hypertension, PTSD, and diabetes mellitus issues. A Motion to Reconsider the Board's decision with regard to the substantive appeal was denied by the Board in November 2008. The Veteran was advised to pursue the matter with the RO. The Veteran's representative did so, and these issues were certified to the Board. In an April 2009 rating decision, the RO granted entitlement to TDIU and assigned an effective date of September 11, 2008. Although it does not appear to have received a notice of disagreement with the effective date; in April 2009, the RO issued a statement of the case with regard to the issue of entitlement to TDIU prior to September 11, 2008. The Veteran's representative filed a substantive appeal in June 2009, in response to the statement of the case. An appeal consists of a timely notice of disagreement and after a statement of the case, a timely substantive appeal. 38 C.F.R. § 20.200 (2009); cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that a substantive appeal, is not a jurisdictional requirement). The TDIU issue; however, is an element of the claims for increased ratings for PTSD and diabetes mellitus. The latter issues involve the period prior to September 11, 2008. Hence, the issue of entitlement to TDIU prior to that date, is also before the Board. The issue of entitlement to service connection for hypertension and entitlement to a total rating based on individual unemployability (TDIU) prior to September 11, 2008 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. The Veteran's PTSD is not manifested by total occupational and social impairment. 2. For the period prior to February 6, 2009, the Veteran's type II diabetes mellitus did not require insulin and there is no medical evidence of a requirement for regulation of activities. 3. For the period beginning February 6, 2009, the Veteran's type II diabetes mellitus requires the use of insulin, a restricted diet, and the regulation of activities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). 2. For the period prior to February 6, 2009, the criteria for the assignment of a disability rating greater than 20 percent for diabetes mellitus type II have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2009). 3. For the period beginning February 6, 2009, the criteria for the assignment of a disability rating of 40 percent for diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), as amended, and implementing regulations impose obligations on VA to provide Veterans with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). For the Veteran's increased rating claim, under the VCAA, VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) must request that the Veteran provide any evidence in his possession that pertains to the claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided VCAA required notice regarding his increased rating and TDIU claims, in correspondence sent to the Veteran in May 2001, November 2005, December 2005, and July 2007. These letters told the Veteran that he could substantiate the claims with evidence that the disability had worsened, notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his increased rating claims, and identified his duties in obtaining information and evidence to substantiate his claims. A March 2006 letter further provided notice of the type of evidence necessary to establish a disability rating and effective date for the claimed disabilities under consideration, in accordance with Dingess. The letter told him that he could substantiate the claims with evidence of the impact of his disabilities on employment, provided examples of evidence that could substantiate the claims, and provided all elements of the notice required by Vazquez-Flores. For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a Veteran submit any evidence in his or her possession that might substantiate the claims. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran, nonetheless, received this notice in the May 2001, November 2005, December 2005, and July 2007 letters. Some elements of the notice in this case were provided after the initial adjudication of the claims. This timing deficiency was cured by readjudication of the claims in a June 2009 supplemental statement of the case issued after the notice was provided. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Duty to Assist The VCAA also requires VA to make reasonable efforts to help a Veteran obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a Veteran obtain records relevant to his claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claims. 38 C.F.R. § 3.159(c)(4). VA has obtained all available records, including service records, and records from VA and private treatment providers. Additionally, the Veteran was afforded adequate VA examinations in response to his claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A Veteran 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. 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. The Board must determine whether there is any other basis upon which an increased evaluation may be assignable. In this regard, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative of or overlapping; the Court has held that the Veteran is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, at 262 (1994). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2009). When evaluating the level of disability from a mental disorder, VA 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(b) (2009). Increased Rating Claims PTSD Rating Criteria PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which in turn incorporates criteria contained in the General Rating Formula for Mental Disorders. Under the General Rating Formula, a noncompensable disability rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational or social functioning or to require continuous medication. A 30 percent disability rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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 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 evaluation is warranted for PTSD if the Veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is 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. The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. The Global Assessment of Functioning (GAF) score 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 (citing DSM-IV at 32). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of 41-50 is assigned where there are, "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)." A GAF score of 51-60 rating indicates 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). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy, or theft within the household, but generally functioning pretty well, and has some meaningful interpersonal relationships. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444. Background In a March 2007 rating decision, the RO increased the Veteran's disability rating for PTSD from 50 percent to 70 percent disabling, effective June 28, 2005, the date the RO received the Veteran's claim for an increased rating. In May 2007, the Veteran filed a notice of disagreement with the disability rating of 70 percent and the effective date, stating he was entitled to a disability of 70 percent or greater as early as June 28, 2004. In a June 2009 rating decision, the 70 percent evaluation for PTSD was granted effective June 1, 2004. In May 2001, the Veteran was afforded a VA examination. The examiner noted the Veteran was cleanly attired, pleasant and cooperative. His functions appeared to be grossly intact and he was moderately well-oriented to time, place, person and situation. The Veteran reported he stopped working two and a half years ago, however, he then stated he worked until just 3 months ago on a job painting. The examiner diagnosed the Veteran with PTSD and stated his condition appeared to be progressive and possibly exacerbated by rather critical physical problems; and, a personality disorder, deferred. The examiner assigned a GAF of 46 but noted that this was for moderate to severe symptoms, continuous. The examiner noted the Veteran had been able to function until very recently as a painter. However, his worsening physical and emotional condition would "discourage optimism" with respect to any future employment. In an April 2003 VA treatment record, the Veteran stated he self- increased his medication as he felt it "pooped out." He reported bothersome daily intrusive thoughts, avoidance symptoms, irritability, decreased concentration and hypervigilance, all of which had worsened, especially over the past 3 months. He reported suicidal ideation, but with no intent or plans. He reported he heard voices intermittently regarding the war. The examiner opined the Veteran had a PTSD and depression relapse; continued psychosis, not otherwise specified; and, polysubstance dependence history with a recent relapse of alcohol, now sober for 2 months. In November 2005, the Veteran underwent a VA examination. The Veteran's wife noted he had a very short temper, he was anxious, scared, depressed, and sleep impaired. She stated they had to sleep in separate bedrooms because he screamed and pulled her hair. The Veteran reported social isolation. He denied delusions and hallucinations. He reported that he thought about suicide but no ideations or plans or intent. He was oriented to person, place and time and had no noted impairment of thought processes or communication. The examiner opined that if PTSD symptoms had increased, and he was "not particularly successful in finding the usual indices of increase," they were probably due to the somewhat "dire prognosis" provided by the Veteran's cardiomyopathy. The examiner diagnosed the Veteran with chronic PTSD, and assigned a GAF of 38. In a May 2006 VA mental health interdisciplinary note, the Veteran reported nightmares every night. The examiner noted the Veteran was appropriately dressed, cooperative, less irritable, without psychomotor agitation or retardation, his speech was of normal rate, tone and volume, affect was congruent with mood, and his thought process was logical and goal directed. He denied auditory or visual hallucinations or delusions and further denied suicidal or homicidal ideations or plans. The Veteran was diagnosed with PTSD and his last GAF score was 45. In a December 2006 mental health note, the Veteran reported that his nightmares had increased with increased stress and activity at his house. The examiner noted he would increase the Veteran's medication until his son moved out of the house. The Veteran reported that he woke up from nightmares less agitated without sweating or rapid heart. He experienced flashbacks approximately 3 times per week causing fear lasting for an hour or more. The examiner noted the Veteran was appropriately dressed with his cap pulled down low with tired eyes. He was cooperative and smiling, his speech was a normal rate, tone and volume. His mood was euthymic unless having flashback, which he rated as a 6 out of 10 and his affect was congruent with his mood. His thought process was logical and goal directed. He denied auditory or visual hallucinations or delusions and had no suicidal or homicidal ideations or plan. His insight, judgment, and memory was good. The Veteran was diagnosed with PTSD and assigned a GAF of 59. In August 2007, the Veteran underwent a VA examination and reported that he was married and when asked how his marriage was progressing, the Veteran stated "she is still hanging in." The Veteran reported that he primarily sat on his back porch. He stated that he gets upset, very angry and even violent. The examiner conceded that symptom aggrandizement was a possibility in the present case. The Veteran stated he experienced symptoms every day and they were very severe. The Veteran denied violence and assaultiveness, stating "no more, I hope." He stated he had thoughts of suicide, however, he denied delusions or hallucinations. The examiner found no impairment of thought processes. The Veteran was oriented to person, place, time and circumstance. The Veteran reported he had no memory loss. He denied obsessive or ritualistic behavior. Rate and flow of speech appeared normal in every sense. He complained of depression and sleep impairment, but not anxiety, impaired impulse control, or panic attacks. The examiner diagnosed the Veteran with chronic and severe PTSD and assigned a GAF of 48. The examiner noted a minor exacerbation of symptoms and stated the Veteran's days of gainful employment "appeared" to be behind him, stating a total and permanent disablement appeared feasible. In a June 2008 VA medical record, the Veteran was diagnosed with PTSD and assigned a GAF of 40. In September 2008, the Veteran was afforded a VA examination where he reported depression, anxiety, thoughts of suicide, nightmares and sleep impairment. The Veteran stated that he was told that his PTSD, especially the depression, brought on his "attacks." The Veteran reported anxiety and fear. He described his marital and family relationships as "okay," however, his social relationships were "not good at all" as he did not like going out, and preferred to be by himself. The examiner stated the Veteran was oriented to person, place, time, situation, and purpose with no delusions or hallucinations. Rate and flow of speech seemed to be normal in every sense. The Veteran denied memory loss, obsessive or ritualistic behavior and impaired impulse control. The Veteran was diagnosed with chronic and severe PTSD and assigned a GAF of 54. In an April 2009 VA mental health outpatient follow-up note, the Veteran stated he quit drinking 52 days ago. He reported on- going sleep impairment, with nightmares waking him up. He continued to live with his wife of 19 years. He reported more energy and denied any suicidal or homicidal ideation, audio or visual hallucinations, or any harmful intent. His anxiety was under "pretty good" control. He denied mood swings. The Veteran reported that things were going very well and he could not believe that just stopping alcohol could have had such a positive change in his life. He stated that he enjoyed each day and was not bothered by all the little things like he was in the past. The examiner noted his appearance, grooming and hygiene were good, and he was cooperative. His speech and psychomotor activity was within normal limits. His mood was "absolutely wonderful." Memory and orientation were intact, and judgment and insight were good. The examiner diagnosed the Veteran with PTSD and nicotine addiction, in remission, and assigned a GAF of 68. The examiner noted the Veteran was very happy to be sober and feeling better medically, taking his medication, and had a very supportive family. Analysis During the appeal period, the Veteran reported significant anxiety, daily intrusive thoughts, avoidance symptoms, irritability, hypervigilance, hearing voices intermittently, and suicide ideation, resulting in severe difficulties occupationally and socially. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Here, deficiencies were reported in the areas of work, family relations, and mood. Deficiencies in thinking and judgment have also been demonstrated. The Veteran reported marital difficulties, however, he reported there was less difficulty now that he had stopped drinking. Based upon the above findings, the Board finds that the Veteran's disability more nearly approximates a 70 percent disability rating for PTSD. His history demonstrates clear occupational and social impairment, with deficiencies in most areas. A 100 percent rating is not warranted because the Veteran has not shown total occupational and social impairment. Rather, the Veteran has demonstrated a considerable level of social functioning. He has maintained social relationships with his wife and family. He is currently not working, primarily it appears due to heart related issues. Also, he has not shown symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly in appropriate behavior, persistent danger of hurting himself or others, or memory loss. While the evidence is not entirely conclusive as to occupational impairment, it is eminently clear that total social impairment has not been shown. As such, the Board finds that an evaluation in excess of 70 percent is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7, 4.21. Diabetes Mellitus, Type II Background The Veteran seeks an increased rating for diabetes mellitus, type II, currently evaluated as 20 percent disabling. In a January 2002 rating decision, the Veteran was granted service connection for diabetes mellitus type II and assigned a 20 percent disability evaluation, effective April 16, 2001. In October 2002, the Veteran filed a claim for an increased rating, stating his diabetes caused him to have a stroke. In July 2001, the Veteran underwent a VA examination and was noted to have been diagnosed with diabetes for the past 6 months. The examiner diagnosed the Veteran with diabetes mellitus type II and noted he was taking oral medication. In October 2002, the Veteran underwent a VA examination. The examiner stated the Veteran's diabetes was diagnosed four years ago and was well-controlled on oral medication. The examiner noted the Veteran had extensive atherosclerotic cardiovascular disease and experienced a stroke 2 months ago. The examiner diagnosed the Veteran with diabetes mellitus, relatively well- controlled. In November 2005, the Veteran underwent a VA examination where he reported hypoglycemia 5-6 times per month. The examiner noted the Veteran was diagnosed with diabetes in May 2000. The examiner diagnosed the Veteran with diabetes mellitus type II. The Veteran was afforded a VA examination in August 2007. The examiner noted the Veteran was diagnosed in 2001 and was on oral medication, but did not require insulin. He had not been in the hospital for ketoacidosis or hypoglycemia, although he had hypoglycemic episodes two times per week. He saw a physician every 3 months for his diabetes. He watched his diet and exercised by doing sit-ups and walking one block three times per week. He reported some numbness and tingling in his feet every day about 2-3 times per day. The examiner diagnosed the Veteran with diabetes mellitus type II. The Veteran underwent a VA examination in September 2008 and reported he was taking only oral medication, no insulin was required. He had not been in the hospital for ketoacidosis or hypoglycemia, however he had hypoglycemic episodes 2-3 times per week. The Veteran reported that he saw a doctor every 3 months for his diabetes, watched his diet and exercised. The Veteran was diagnosed with diabetes mellitus type II and the examiner further stated the Veteran was unable to obtain or maintain gainful employment in his prior position as a full time painter due to his diabetes mellitus and associated symptoms of heart, kidney and peripheral neuropathy. The examiner further diagnosed the Veteran with peripheral neuropathy of the upper and lower extremities, which was as likely as not 50/50 probability related to his diabetes mellitus type II. A VA treatment record notes that in February 2009, the Veteran began taking insulin for his diabetes. Analysis Diabetes mellitus is evaluated under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2009). Under that diagnostic code, a 20 percent rating is assigned when there is evidence that the Veteran's diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet. A 40 percent evaluation is assigned for diabetes that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned when there is also evidence 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. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). In Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007), it was held that the evidence must show that there must be medical evidence that it is necessary for a claimant to avoid strenuous occupational and recreational activities. In addition, a note following the rating criteria indicates that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. However, noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. For the period prior to February 6, 2009, the Board concludes that the evidence of record does not support assignment of a disability rating greater than 20 percent for type II diabetes mellitus. A greater disability rating under this diagnostic code provision would require an even more severe degree of impairment, which has not been shown by the evidence of record. During this time period, his condition did not necessitate the use of insulin, his condition was stable, and the Veteran reported that he watched his diet and exercised. In order to warrant an increased disability evaluation, the Veteran's diabetes would require insulin, a restricted diet, and regulation of activities. As noted above, that is not the case here, the Veteran took only oral medication, watched his diet and exercised. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990). For the period beginning February 6, 2009, the Board finds that a 40 percent disability rating, and no more, is warranted. In September 2008, a VA examiner stated the Veteran was unable to obtain or maintain gainful employment in his prior position as a full time painter due to his diabetes mellitus and associated symptoms of heart, kidney and peripheral neuropathy. The examiner diagnosed the Veteran with peripheral neuropathy of the upper and lower extremities, which was as likely as not 50/50 probability related to his diabetes mellitus type II. Additionally, a VA treatment record dated February 6, 2009 indicates the Veteran began the use of insulin. This combined with the September 2008 VA examination findings warrants a 40 percent disability evaluation as of February 6, 2009. A higher, 60 percent rating is not warranted in this matter as there is no evidence of 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. As the evidence indicates the Veteran requires insulin, a restricted diet, and regulation of activities as defined in Camacho, based on the report of the September 2008 VA examiner who noted the Veteran was unable to gain or maintain employment, the Board finds the 40 percent disability evaluation, and no more, for the period beginning February 6, 2009 is warranted. Extra-Schedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this matter, for the above noted disabilities, there are no symptoms that are beyond those contemplated by the rating criteria. 38 C.F.R. §§ 4.123, 4.124, 4.124(a). Further consideration of an extraschedular rating is therefore, not warranted. TDIU The Court has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was assigned TDIU effective September 11, 2008. He currently seeks entitlement to an effective date earlier than September 11, 2008, which is addressed in the Remand section below. ORDER A disability rating greater than 70 percent for PTSD is denied. For the period prior to February 6, 2009, a disability rating greater than 20 percent for service-connected diabetes mellitus is denied. For the period beginning February 6, 2009, a disability rating of 40 percent for service-connected diabetes mellitus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In light of a review of the claims file, the Board finds that further RO/AMC action on this matter is warranted. The Veteran filed a claim received by the RO on November 8, 2005 (see VCAA letter dated December 21, 2005), seeking entitlement to service connection for hypertension, to include as secondary to his service-connected PTSD and/or diabetes mellitus type II. The Veteran also seeks entitlement to TDIU prior to the currently assigned effective date of September 11, 2008. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hypertension. In an October 1997 VA Health Assessment, the Veteran was noted to have increased blood pressure and was subsequently diagnosed with hypertension. The report indicated the Veteran's blood pressure was 183/114 in October 1997, 163/70 in April 1997, 198/106 in February 1997, and 205/99, also in February 1997. In November 2005, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with type II diabetes, and essential hypertension, and stated it was less likely than not that the Veteran's essential hypertension was secondary to diabetes, as the Veteran's hypertension preceded his diagnosis of diabetes. On May 30, 2006, a VA nurse submitted a letter to support a worsening of the Veteran's chronic cardiac disability due to symptoms of PTSD. The nurse stated that untreated PTSD was related to poorer physical health and related to a higher incidence of hypertension and diabetes. The nurse further indicated the Veteran's "cardiac functioning" was severely limited and "probably" made worse by his chronic PTSD. In this matter, the Board finds that a VA medical examination is warranted. Based on the above, the medical evidence of record is insufficient for the Board to render a decision on the issue of entitlement to service connection for hypertension. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran also seeks entitlement to a TDIU prior to September 11, 2008. The Veteran was granted a 70 percent disability evaluation for PTSD, effective June 1, 2004, meeting the rating criteria requirements for a TDIU. Where a veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities, i.e., is the Veteran capable of performing the physical and mental acts required by employment, not whether he can find employment. In this matter, a VA medical opinion and/or examination is required prior to adjudication of his TDIU claim, in order to factually ascertain when the Veteran's service-connected disabilities rendered him unemployable. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination with the appropriate expertise to determine whether if the Veteran's currently diagnosed hypertension is related to the service-connected PTSD and/or diabetes mellitus type II, or is otherwise related to service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused or permanently worsened by the service-connected PTSD and/or diabetes mellitus type II. The examiner should review the claims file including the service treatment records. This review of the claims folder should be noted in the examination report or in an addendum to the examination report. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide a rationale for any opinions. The examiner is advised that the Veteran is competent to report his history and symptoms and that the examiner must take his reports into account. 2. The RO should obtain a VA medical opinion as to the following question, based upon a claims file review: Based on the Veteran's service-connected disabilities (as listed in a June 2009 rating decision), at what point in time was it factually ascertainable that the Veteran was unemployable? All opinions and conclusions expressed must be supported by a complete rationale in a report. 3. If the claims on appeal are not fully granted, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs