Citation Nr: 1304769 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 06-18 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to disability ratings for post-traumatic stress disorder (PTSD) higher than an initial rating of 30 percent and a rating of 50 percent from July 22, 2011. 2. Entitlement to an initial disability rating higher than 20 percent for diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to August 1971. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Wichita, Kansas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In an August 2005 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating. The RO granted service connection for type II diabetes mellitus and assigned a 20 percent rating. In May 2007, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge. In April 2010, and again in June 2011, the Board remanded the case to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives with respect to the claim for higher ratings for PTSD. The Board will proceed with review that issue. See Stegall v. West, 11 Vet. App. 268 (1998). In an October 2012 rating, the RO granted an increase in the rating for PTSD to 50 percent effective July 22, 2011. The Veteran has continued his appeal and is seeking higher initial and later ratings for PTSD. The Veteran has indicated that he has been totally disabled and unemployed since 2000. Records from the United States Social Security Administration (SSA) reflect that SSA determined that the Veteran was disabled from 1999 forward due to a primary diagnosis of osteoporosis and a secondary diagnosis of diabetes mellitus. The United States Court of Veterans Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA must consider TDIU as part of the issue of a proper disability rating whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits." Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran has not formally filed a claim for TDIU, and the RO has not adjudicated such an issue. Reading Rice and Comer together, and noting that SSA considered the Veteran's service-connected diabetes as a factor in his unemployability, the Board will consider the issue of entitlement to a TDIU. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. In this case, there are issues that have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Because the AOJ has not adjudicated the issues, the Board does not have jurisdiction over them. The Board therefore will refer those issues to the AOJ for appropriate action. The issues with this status are as follows: (1) service connection for cataracts, to include as secondary to diabetes; (2) service connection for a colon disorder, to include as secondary to diabetes; (3) service connection for a disorder manifested by albuminuria, to include a kidney disorder, to include as secondary to diabetes; and (4) service-connection for a heart disorder, to include non-ischemic cardiomyopathy, to include as secondary to diabetes. The Board hereby refers each of those issues to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's PTSD produces occupational and social impairment, with deficiencies in most areas, such as capacity for work, family relations, judgment, thinking, and mood, due to such symptoms as suicidal ideation, near continuous depression, panic attacks, unprovoked irritability, difficulty adapting to stressful circumstances, and considerable difficulty maintaining effective relationships. 2. The Veteran's diabetes mellitus requires insulin and a restricted diet but does not require regulation of activities, hospitalizations, or more than monthly visits to a diabetic care provider. 3. The combined effects of the Veteran's PTSD, diabetes, peripheral neuropathy of the extremities, hearing loss, and tinnitus, make him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The Veteran's PTSD meets the criteria for a 70 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The Veteran's diabetes mellitus has not met the criteria for a disability rating higher than 20 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 3. The ratings for and effects of the Veteran's service-connected disabilities meet the criteria for a TDIU. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in October 2004 and May 2006. The October 2004 letter addressed the information and evidence necessary to substantiate claims for service connection, and addressed who was to provide the evidence. The May 2006 letter, which was issued with a May 2006 statement of the case, informed the Veteran how VA assigns disability ratings and effective dates. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of the May 2007 hearing. The Veteran has had examinations that are adequate for evaluating his PTSD and his diabetes. In the April 2010 remand the Board instructed that the most recent VA treatment records be obtained and that a supplemental statement of the case (SSOC) regarding the PTSD and diabetes rating issues be issued. More recent VA treatment records were obtained. The AMC issued an SSOC regarding the PTSD and diabetes rating issues. In the June 2011 remand the Board instructed that the Veteran receive new VA examinations addressing his PTSD and diabetes. In July 2011 the Veteran received new VA examinations addressing his PTSD and diabetes. The Board finds that there has been substantial compliance with the remand directives. The Board finds that no additional remand is required, and that the appellant will not be prejudiced by the Board adjudicating the claims at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Ratings for PTSD In an August 2005 rating decision, the RO granted service connection, effective September 10, 2004, for PTSD. The RO assigned a 30 percent rating. In an October 2012 rating, the RO granted an increase in the rating for PTSD to 50 percent effective July 22, 2011. The Veteran continued his appeal. He is seeking higher initial and later ratings for PTSD. VA assigns disability ratings 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 VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initial disability rating that the RO assigned, and continued his appeal after the RO assigned a higher rating for a later period. The Board will consider the evidence for the entire period since the effective date of the grant of service connection, and will consider whether staged ratings are warranted. The rating schedule provides for evaluating mental disorders such as PTSD under a General Rating Formula for Mental Disorders. That formula provides for ratings of 30 percent and higher as follows: 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 percent 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 percent 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 percent 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 percent 38 C.F.R. § 4.130. One factor that may be considered in evaluating mental disorders 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)); see also Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 51 and 60 indicate 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). A GAF score of 31 to 40 indicates 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). See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) ((DSM-IV)). While the rating schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130. The Veteran has received VA outpatient mental health treatment since 2005. Treatment has included medications, individual therapy, and group therapy. Treating clinicians have diagnosed the Veteran with PTSD and with severe major depressive disorder with psychotic features. The psychotic features have included hearing voices and having flashbacks. From 2005 forward the Veteran reported having suicidal thoughts, with the frequency of such thoughts varying over the years. It was reported that the Veteran worked as an electrician, and stopped working around 2000 because of physical problems. The Veteran reported that during the years he was employed he never kept any job for long, in significant part because he could not get along with people, especially persons in authority. In treatment the Veteran indicated that his irritability, depression, and anxiety kept him from interacting with and getting along with his family members. Records from 2005 through 2011 reflect some fluctuation in the frequency of nightmares reported, but fairly consistent reports of very impaired sleep, depression, anxiety, and irritability, with isolative behavior and impaired family relationships. From about 2007 forward, increased impairment of memory and concentration has been noted. Panic attacks reportedly have occurred more frequently over time. On VA examination in May 2005, the examiner diagnosed PTSD as a result of the Veteran's experiences in combat in Vietnam. The effects of the Veteran's PTSD included daily anxiety, nightly sleep disturbance, weekly depression, occasional suicidal thoughts, and occasional panic attacks. He also had hypervigilance and exaggerated startle response. The Veteran lived with his wife and was not close to his grown children. He had very little recreation and very few friends. On examination, the Veteran was oriented and had normal speech. The examiner assigned a GAF score of 50. In the May 2007 Board hearing, the Veteran indicated that since he began treatment for PTSD in about 2004 his PTSD had worsened. He stated that he was on two medications for PTSD. He reported that he had nightmares and nightsweats, and that once he awoke to find he was beating his wife. He indicated that since then they slept in separate beds. He reported that he thought about suicide. He stated that he had panic attacks. He indicated that he lived with his wife, and that he was not close with his grown children. The Veteran's brother reported that he had observed that the Veteran had great difficulty focusing. In a May 2007 statement, an electricians union official listed skills needed for the electrician work the Veteran had performed. The official stated that in addition to physical and technical skills electricians needed to be able to work well with others, work well alone, and take instructions and criticism well. The official reported that the Veteran's work history showed that he worked with many contractors and did not stay with any of them for a long period of time. In May 2007, the Veteran submitted statements from his wife and his two daughters. His wife wrote that after the Veteran retired in 2000 on Social Security disability, he became more irritable, impatient, moody, and at times impossible to tolerate. She stated that after the September 2001 terrorist attacks the Veteran hoarded water and food, gathered weapons, and kept the windows dark. She reported that he became even more angry, that he was restless and depressed, and that he had nightmares and talked in his sleep. She stated that sometimes he awakened suddenly covered with sweat, and once she awoke to him hitting her in her face with his fist, necessitating their sleeping separately since. One of the Veteran's daughters wrote that while she was growing up the Veteran was very moody, distant, and withdrawn. She indicated that the Veteran seemed unable to express affection, and always seemed angry. She stated that his moods and behavior put stress on her and other family members. The other daughter wrote she never had a close relationship with the Veteran, because the Veteran was withdrawn, distant, depressed, and intimidating. She stated that his ways caused her difficulty while growing up and after. In several treatment note entries from 2008 forward, the VA psychiatrist who treated the Veteran stated that the Veteran's PTSD manifestations, including serious problems with anger and irritability and problems with memory and concentration, would make him unable to maintain employment. Over the years, that psychiatrist assigned GAF scores of 50 and 45. On VA PTSD examination in February 2009, the Veteran indicated that he was receiving treatment including medications for his PTSD. He reported that he had nightmares and that he did not sleep more than two or three hours at a time. He indicated that his mood was fair but his motivation was very low. He did not have suicidal plans. He denied hallucinations. He reported having anxiety, but denied panic attacks. He indicated that he was easily angered. The examiner stated that PTSD and physical problems together made the Veteran obviously unemployable. The examiner noted that the Veteran's PTSD was manifested by a basic distrust and discomfort around others. The examiner stated that without speculation he could not offer an opinion as to whether the Veteran's PTSD alone would make him unable to maintain employment. The examiner assigned a GAF score of 55. On VA PTSD examination in July 2011, the Veteran indicated that he had worked as an electrician, and had not worked since 2000. He reported daily anxiety and daily depression with feelings of hopelessness. He related frequent panic attacks, most recently earlier that day. He reported that worry interfered with sleep, and that he did not sleep more than two or three hours at a time. He stated that his PTSD symptoms, including irritability, verbal outbursts, memory problems, and concentration problems, strained his relationships with his wife and grown children. He indicated that he had periodic suicidal ideation without intent. The Veteran reported memory problems, with difficulty remembering names, dates, and when to take medications. He reported a history of auditory hallucinations, although none in the last couple of years. He also reported problems with concentration. The examiner observed that the Veteran was oriented and had normal speech. The Veteran's mood was anxious and his affect was flat. The examiner noted that the Veteran had increased impairment compared with his condition at the previous VA examination. The examiner expressed the opinion that the Veteran's PTSD and his severe major depressive disorder with psychotic features were too inter-related to be reliably separated. The examiner assigned a GAF score of 45. The assembled evidence, including repeated persuasive statements from the VA psychiatrist who has treated the Veteran over several years, indicates that, from at least as early as the September 2004 effective date for service connection for PTSD, the Veteran's PTSD has produced occupational and social impairment, with deficiencies in most areas, such as capacity for work, family relations, judgment, thinking, and mood. Symptoms have included suicidal ideation, near continuous depression, panic attacks, unprovoked irritability, difficulty adapting to stressful circumstances, and considerable difficulty maintaining effective relationships. The disability picture has more nearly approximated the criteria for a 70 percent rating than those for 30 or 50 percent ratings. The Board therefore grants an initial disability rating of 70 percent for the Veteran's PTSD. The evidence, including the treatment and examination records, does not tend to show that the Veteran has even more disabling manifestations, such as impaired thought processes, persistent hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation, or severe memory loss, such as would warrant a 100 percent rating under the rating schedule. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's PTSD has not required frequent hospitalizations. His PTSD has had effects on his capacity for employment, but those effects are contemplated in the 70 percent rating that the Board is granting, and in the TDIU that the Board is granting in this decision, below. Therefore it is not necessary to refer the PTSD rating issue for consideration of an extraschedular rating. Rating for Diabetes The RO assigned an initial 20 percent disability rating for the Veteran's diabetes mellitus. The Veteran has appealed for a higher rating. The Board will consider the evidence for the entire period since July 21, 2003, the effective date of the grant of service connection, and will consider whether staged ratings are warranted. The RO has established, separate from service connection for diabetes, service connection for diabetic peripheral neuropathy in each of the Veteran's extremities (left upper, right upper, left lower, and right lower). The RO assigned a 10 percent rating for the neuropathy in each of those extremities, that is, four separate 10 percent ratings. As a preliminary matter, the Board notes that a VA clinician who examined the Veteran in July 2011 found that the Veteran has albuminuria that is a complication of his diabetes, and indicated that the albuminuria could be a sign of kidney disease. In addition, the examiner stated that the Veteran has non-ischemic cardiomyopathy that is a complication of his diabetes. The examiner's findings raise the question of whether VA should establish for separate service connection for a kidney disorder and separate service connection for a heart disorder, in each case as secondary to the Veteran's service-connected diabetes. The RO has not addressed these questions, so these questions are not before the Board to address at this time. Above, in the introduction to this decision, the Board therefore referred these issues to the RO for appropriate action. The rating schedule provides the following criteria for rating diabetes: 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 percent 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 percent Requiring insulin, restricted diet, and regulation of activities .............................................................................. 40 percent Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet ......................................... 20 percent Manageable by restricted diet only ........................ 10 percent 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Private medical treatment records from 1996 indicate that the Veteran was diagnosed with type II diabetes mellitus in 1994. The endocrinologist who treated the Veteran in 1996 had the Veteran on a restricted diet. By 1997, treatment for the Veteran's diabetes included an oral hypoglycemic agent. In 2002, the endocrinologist added insulin to the Veteran's treatment. Private treatment records from 2003 and 2007 do not indicate that any treating clinician called for regulation of activities as part of the treatment for diabetes. From September 2004, the dose of insulin was four times per day. VA treatment records dated from 2003 to 2007 reflect that the Veteran's diabetes was treated by a private practitioner and included insulin and a restricted diet. Those records do not indicate that treatment for the Veteran's diabetes included regulation of activities. On a VA diabetes examination in May 2005, it was noted that the Veteran restricted his diet because of his diabetes. The examiner found that the Veteran had no ketoacidosis or hypoglycemic reaction at the time of the examination. There was evidence of tingling and numbness in fingers and toes and diminished strength in the upper extremities. The examiner noted that knee problems limited the Veteran's exercise capacity. The examiner described the Veteran's diabetes as moderately severe. On a VA diabetes examination in November 2005, the examiner found that the Veteran had upper and lower extremity neuropathy due to his diabetes. In May 2007, private endocrinologist B. S., M.D., wrote that the Veteran had insulin-requiring diabetes, was on a diabetic diet, and took multiple medications to control his diabetes. Dr. S. stated, "He has limitations in his exercise capacity, in part due to his orthopedic difficulties. He also has diabetic neuropathy and possible circulatory disease." In the May 2007 Board hearing, the Veteran reported that he was taking injected insulin up to eight times per day and was taking two types of oral medications for diabetes. The Veteran indicated that the physician who treated his diabetes had not instructed him to regulate his activities because of his diabetes. VA treatment notes from February 2008 reflect that the Veteran's diabetes treatment included three insulin injections per day. On VA general medical examination in February 2009, it was noted that the Veteran's medications included injected insulin three times a day for diabetes. On VA diabetes examination in February 2009, some decreased sensation in the extremities was noted. VA treatment notes from March 2009 indicate that the Veteran's diabetes treatment included injection of one type of insulin three times a day and another type of insulin two times a day. That insulin dosage is also noted in subsequent VA treatment records dated through 2011. VA treatment notes reflect that from 2009 the Veteran has received VA in-home primary care treatment, with monthly visits, and that such treatment addresses multiple issues including cardiovascular issues, gastrointestinal issues, urinary issues, and diabetes. On VA diabetes examination in July 2011, the Veteran reported that over the last six months he had experienced a change in appetite and had lost 20 pounds. He indicated that he had episodes of hypoglycemic reactions or ketoacidosis. He related that he saw a diabetic care provider monthly or less often. The examiner noted that the Veteran's diabetes required him to follow a restricted diet, and that his diabetes did not restrict his ability to perform strenuous activities. From at least 2003 forward, the Veteran's diabetes has required insulin and a restricted diet. Most treatment records have not indicated that his diabetes requires regulation of activities. Dr. S. wrote in 2007 that the Veteran had exercise capacity limitations in part due to orthopedic problems. Dr. S. did not say what caused the remainder of the Veteran's limitation of exercise capacity. As Dr. S.'s statement is about the Veteran's diabetes, there is an implication that diabetes was also part of the cause of the limitation of the Veteran's capacity for exercise. Dr. S. only implied, and did not explicitly state, that the Veteran's diabetes limited his capacity for exercise. The remainder of the Veteran's treatment records are silent as to whether the Veteran's diabetes requires regulation of activities. In the 2011 VA examination, the examiner explicitly stated that the Veteran's diabetes does not require regulation of activities. The examiner's explicit statement is more persuasive than Dr. S.'s implication. The greater persuasive weight of the evidence therefore indicates that the Veteran's diabetes does not require regulation of activities. The Veteran's diabetes requires more than one daily injection of insulin. His diabetes has not, however, required any hospitalizations nor diabetic care visits more than once a month. Weight loss was noted on the 2011 examination, but neither that examiner nor other clinicians have indicated that the Veteran has had progressive weight loss. The requirement of multiple daily injections of insulin, by itself, is not sufficient to make the Veteran's diabetes disability picture tend to resemble the criteria for ratings higher than 20 percent. As noted above, the Board is referring the issues of diabetic complications to the RO for initial adjudication. Regarding the Veteran's diabetes as considered apart from diabetic complications, the preponderance of the evidence is against a rating higher than the existing 20 percent rating. The Veteran's diabetes has not required frequent hospitalizations. The manifestations of his diabetes would be expected to have some effect on his capacity for employment, but the evidence does not tend to show that his diabetes, by itself, would interfere with employment to a marked extent. Therefore, it is not necessary to refer the diabetes rating issue for consideration of an extraschedular rating. TDIU VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). With the present grant of an initial 70 percent rating for PTSD, the ratings for the Veteran's PTSD, diabetes, and other service-connected disabilities meet the criteria under 38 C.F.R. § 4.16(a) for a TDIU. In multiple statements, the VA psychiatrist who treats the Veteran has expressed the opinion that the Veteran's PTSD makes him unable to secure or follow a substantially gainful occupation. Medical records also indicate that the Veteran's diabetes and peripheral neuropathy would likely create at least some difficulties in an employment setting. The Board concludes that the evidence supports a TDIU. ORDER Entitlement to an initial 70 percent disability rating for PTSD is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Entitlement to a disability rating higher than 20 percent for diabetes mellitus is denied. Entitlement to a TDIU is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs