Citation Nr: 1306776 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-22 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 30 percent for proliferative diabetic retinopathy with pseudophakia, both eyes. 3. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1966 and from September 1969 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a May 2012 decision, the Board remanded these issues for additional development. In September 2012, the RO issued a rating decision that awarded service connection for hypertension and peripheral neuropathy of each upper and lower extremity, and a total disability rating due to individual unemployability. The record does not reflect that the Veteran has expressed disagreement with the disabilities ratings or effective dates assigned in this rating decision. Accordingly, these matters are not before the Board. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran's PTSD has not resulted in total occupational and social impairment due to 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; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 2. The Veteran's proliferative diabetic retinopathy with pseudophakia is productive of corrected visual acuity of 20/25 in the right eye and 20/30 in the left eye. 3. The competent medical evidence of record indicates that the Veteran's type II diabetes mellitus treatment requires a restricted diet and the use of oral hypoglycemic agents, but has not required restriction of activities. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial disability evaluation in excess of 30 percent for bilateral proliferative diabetic retinopathy with pseudophakia have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.79, Diagnostic Code 6029 (2012). 3. The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a June 2012 letter, the RO letter explained what information and evidence was needed to substantiate a claim for higher initial 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 June 2012 letter 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 June 2012 letter, and opportunity for the Veteran to respond, the September 2012 supplemental statement of the case (SSOC) reflects readjudication of the claims. 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). Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of June 2008, July 2008 and August 2012 VA examinations. The examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As such, the Board finds that the June 2008, July 2008 and August 2012 VA examination reports are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative. The Board finds that no additional RO action to further develop the record on the claims is warranted. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Higher Rating for PTSD The Veteran essentially contends that his PTSD is more disabling than contemplated by the initial 70 percent disability evaluation. The Veteran's disability has been evaluated under Diagnostic Code 9411 for PTSD. Under the relevant rating criteria, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2012); VAOPGCPREC10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some mild symptoms [e.g., depressed mood and mild insomnia] or some difficulty in social, occupational, or school functioning [e.g., occasional truancy, or theft within the household], but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more moderate symptoms [e.g., flat affect and circumstantial speech, occasional panic attacks] or moderate difficulty in social, occupational, or school functioning [e.g., few friends, conflicts with peers or co- workers]. Scores ranging from 41 to 50 reflect serious symptoms [e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. In addition to PTSD, for which service connection has been established, the record shows an additional of major depressive disorder. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The evidence in the instant case does not differentiate between the symptomatology associated with the Veteran's PTSD and that resulting from his nonservice-connected psychiatric disorders. Further, no mental health professional has attempted to distinguish between said symptomatology. It appears that to delineate between PTSD and the other disorders would be impossibility. Accordingly, for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected PTSD. The Veteran's service-connected PTSD is currently rated 70 percent disabling. The Board has reviewed the evidence in order to determine whether the criteria for the assignment of a higher disability rating have been met. A June 1998 private mental status evaluation noted that the Veteran had been treated for depression over a two year period. His symptoms included inability to keep a job, yelling at people, increased irritability and tendency to withdraw (socially isolate oneself). He also had a history of drug and alcohol abuse. During the interview there was no evidence of speech difficulty, hearing difficulty or visual difficulty. His affect was bland and his memory was poor to fair. There was no evidence of disturbance of thoughts and he denied hallucinations or delusions. He admitted some suicidal ideation but none in recent months. His insight was fair but his judgment appeared poor at times. He was properly oriented to time and place. The diagnosis was major depression and polysubstance dependence in partial remission. A GAF score of 48 was assigned. The physician noted that the Veteran illustrated a very poor level of motivation with regard to returning to work. He was poorly groomed and obviously had considerable difficulty maintain adequate interpersonal relationships. He was capable of managing his own funds. The Veteran underwent a VA examination in July 2008. He reported experiencing recurrent distressing memories of Vietnam as well as nightmares, flashbacks, night sweats, increased startle response, avoidance of reminders of events in Vietnam, anger, depression and anxiety. His wife stated that he fights in his sleep and at times he has tried to choke her while he is sleeping. Sometimes he crawled on the bedroom floor or dove onto the floor thinking that he was back in Vietnam. The examiner noted that the Veteran's score for Mississippi Scale for Combat Related PTSD indicated the presence of a mild to moderate case of PTSD. On examination, he was casually dressed and cooperative, but a poor historian. His hygiene was appropriate and his motor behavior was unremarkable. He looked somewhat tense during the interview. Eye contact was direct and impulse control was appropriate. Speech was of normal volume, rate and rhythm. Voice tone was not well modulated. He was alert and oriented to person, place and time. He reported that his mood was labile but that he was not suicidal or homicidal and was not particularly depressed at the interview. No perceptual distortions were noted. Thought content was rational and logical and thought process was sequential and goal directed. No gross defects of memory were demonstrated. Judgment was by his report fair. Insight was only fair. Psychotic symptomatology was absent. The examiner noted that the Veteran was competent to manage his VA benefits and financial resources. The diagnosis was PTSD, chronic with depressive features. The severity of the PTSD was described as moderate. A GAF score of 60 was assigned for the PTSD alone. A GAF score of 50 was assigned for his marijuana dependency which was secondary to his PTSD. A January 2012 VA psychiatry note reported a history of depression. He angered easily and did not like to be with people. He had intermittent awakening and slept a total of 3 to 5 hours. He had low energy and concentration. He felt worthless at times but denied suicidal thoughts. In the last 3-4 weeks he got upset with his wife and tried to choke her but did not hurt her. He had been abusing cannabis since 1965 and continued to smoke 2 to 3 joints a day. He had been married twice and he had been married to his current wife for 5 years. He had children from his previous marriage. The diagnosis was major depressive disorder and cannabis dependency. A GAF score of 50 was assigned. Pursuant the May 2012 Board remand instructions, the Veteran underwent a VA examination in August 2012. The examiner determined that the best summary of his level of occupational and social impairment was occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. He remained married to his wife but endorsed fairly significant conflict with her at times. On at least one occasion he put his hands on her throat as if to choke her and reported to a provider that he spit at her. He noted that they are prone to arguments and that he "gets in her face" but that he has not physically assaulted her in many months. He endorsed attending church on the weekend and volunteering his time mowing the church lawn. Otherwise, he has very minimal social contact. He saw his adult son occasionally, and reported that he had not seen his daughter in 2 years even though she lives nearby. The Veteran spent most of his time with his wife, with minimal activity other than watching television. He reported that he did not like to go out because he expects that people will start something with him and "I'll have to kill them". He had not worked in many years and continued to be on Social Security disability. In January 2012 he was prescribed an antidepressant and has reported to his provider that this was helping him maintain stability of mood better. He reported that he continued to struggle with persistent nightmares of events in Vietnam, being awoken by his wife because he's "shaking", night sweats, secondary insomnia, hypervigilance to threat (especially from others in public), startle sensitivity, and intrusive thoughts. He continued to smoke marijuana daily. He reported impairment in short term memory and organization. His PTSD symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He was capable of managing his financial affairs. The examiner noted that the Veteran's symptoms had remained relatively stable since his last examination in 2008. His mood seemed improved with fewer outbursts with the inset of medication. He also had deterioration of memory. He also appeared to be engaging in few social activities as time has gone on. A GAF score of 55 was assigned. As noted above, to warrant the assignment of a 100 percent disability rating under Diagnostic Code 9411, the Veteran's PTSD must have manifested in 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. After reviewing evidence of record as a whole, to include the Veteran's ongoing VA treatment reports, his VA examination reports, and his lay statements, the Board finds that the assignment of an initial disability rating greater than 70 percent for the Veteran's service-connected PTSD is not warranted. The Veteran was most recently afforded a VA examination in August 2012. After reviewing the Veteran's medical history and upon interview and examination of the Veteran, the August 2012 VA examiner pertinently concluded that the Veteran's PTSD symptomatology manifested in "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood," which corresponds squarely with the schedular requirements for the assignment of a 70 percent disability rating. Indeed, at no point did the August 2012 VA examiner or any other examiner or treating physician find that the Veteran's PTSD causes total occupational and social impairment, as is required for the assignment of a 100 percent rating. With regard to occupational impairment, the Board acknowledges that his PTSD would have significant impact in a work setting. VA has recognized that his service-connected PTSD either alone or in combination with his other service-connected disabilities renders the Veteran unable to obtain or maintain employment and has therefore awarded a TDIU. In not granting a 100 percent schedular rating for PTSD, the Board is not minimizing the severity of the Veteran's symptoms. The Board notes that the evidence demonstrates that the Veteran experiences significant social impairment as a result of his PTSD. While he remained married to his second wife, he repeatedly stated that there was significant conflict in his marriage which included at least one instance of physical abuse. Additionally, he reported that he did not have contact recently with his daughter despite her living nearby. However, the evidence of record does not reflect that the Veteran's PTSD manifests with 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; or memory loss for names of close relatives, own occupation, or own name. As noted above, the Veteran has reported suicidal ideation on occasion. However, he has also reported these thoughts as fleeting and indicated that he has never made any plans nor does he have intent to act on any of these thoughts. Therefore, the medical evidence of record does not reflect that the Veteran is in persistent danger of hurting himself. While the Board has considered the Veteran's complaints and assertions that his PTSD warrants a 100 percent rating, the Board ultimately finds that the criteria for a 100 percent evaluation have not been met. For these reasons, the Board concludes that an initial schedular evaluation in excess of 70 percent for PTSD is not warranted. In rendering this decision, the Board has taken into account that the Veteran's GAF scores since his effective date of service connection have been recorded as ranging from 50-55. As noted above, according to the GAF scale, scores ranging from 41 to 50 reflect serious symptoms while scores ranging from 51 to 60 can reflect moderate symptoms OR moderate difficulty in social, occupational, or school functioning . See DSM-IV at 47. The Board has considered the Veteran's GAF scores and finds that the symptoms associated with the Veteran's PTSD do not warrant more than a 70 percent rating. Thus, the evidence of record, to include the Veteran's ongoing VA treatment records and his credible lay descriptions of symptoms, simply does not demonstrate that his PTSD has caused total occupational and social impairment at any time during the appeal. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Higher Rating for Proliferative Diabetic Retinopathy with Pseudophakia The Veteran is service connected for bilateral proliferative diabetic retinopathy with pseudophakia, rated 30 percent disabling under Code 6029. This Code was amended in changes to the Rating Schedule which were effective December 10, 2008. However, under either set of Codes, the applicable criteria are identical. Both provide a regulatory minimum rating of 30 percent for aphakia, and permit alternative evaluation for visual impairment if such would result in a higher rating. Moreover, the criteria for evaluation for diplopia, or double vision are also the same under both versions of the Schedule. 38 C.F.R. § 4.84a, Codes 6029, 6078, 6079, 6090 (2008); 38 C.F.R. § 4.79, Codes 6029, 6066, 6090 (2012). Therefore, the discussion below refers only to the currently applicable regulations, for clarity. For unilateral or bilateral aphakia, a minimum 30 percent rating is applied. The Diagnostic Code calls for evaluation based on visual impairment, elevating the resulting level of visual impairment one step worse than the ascertained value, regardless of whether the aphakia is unilateral or bilateral. See 38 C.F.R. § 4.79, Diagnostic Code 6029. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. Under the applicable rating criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent disabling based on the degree of the resulting impairment of visual acuity. See 38 C.F.R. § 4.84a, Diagnostic Codes 6061-6066. A disability rating for visual impairment is based on the best distance vision obtainable after the best correction. See 38 C.F.R. § 4.75. Disability ratings for impaired vision generally are based on corrected distance vision with central fixation. 38 C.F.R. § 4.76. A compensable rating is warranted when corrected visual acuity in the more impaired eye is 20/50 (or worse) and the less impaired eye is 20/40 (or worse); a rating in excess of 30 percent is first warranted where both eyes are 20/100, or where one is 20/200 and the other is 20/70. 38 C.F.R. § 4.79, Code 6066 (2012). Where a claimant reports visual acuity that is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation is used. 38 C.F.R. § 4.76(b) (4). The Veteran underwent a VA examination in June 2008. It was noted that he previously had a cataract removed from his left eye. His visual acuity with correction, glasses was 20/25 for both the right and left eyes. His visual acuity with auto refraction was 20/20 for the right and left eyes. The diagnosis was pseudophakia of the right eye and nonproliferative diabetes retinopathy of the left eye status post Pan-retinal photocoagulation. Per the May 2012 Board remand instructions, the Veteran underwent a VA eye examination in August 2012. No general eye symptoms were noted and the only visual symptom of note was that the Veteran had problems with focus in his left eye when he woke up in the morning. He did not have any current ophthalmological treatment. It was noted that he had undergone cataract surgery (laser procedure) with implant in both eyes. He reported something getting into his left eye at the beginning of the year which scratched his eye. He had no incapacitating episodes due to eye disease. His uncorrected visual acuity of the right eye revealed 20/30 far and 20/70 near. His corrected right eye visual acuity was 20/25 both near and far. His uncorrected visual acuity of his left eye revealed 20/30 far and 20/50 near. His corrected left eye visual acuity was 20/30 far and 20/25 near. No diplopia was reported during the examination. His extra-ocular muscles were full in each eye and his corneal light reflex was symmetric and normal. There was no afferent papillary defect of each eye. The diagnosis was history of proliferative diabetic retinopathy of the left eye. There was no active neovascularization on examination. The Veteran previously received two laser treatments for proliferative diabetic retinopathy. He also had a history of mild non-proliferative diabetic retinopathy of the right eye with no active diseases on examination. He had visual field loss in the left eye. He had refractive error and presbyopia in each eye. He wore eyeglasses. This was not related to his military service or service-connected diabetes. The examiner opined that the Veteran's visual field loss in his left eye was most likely caused by or the result of proliferative diabetic retinopathy or the treatment for proliferative diabetic retinopathy. The visual acuity was good in both eyes and the visual field loss of the left eye was compensated by the adequate field vision in the other eye. Upon reviewing these rating criteria in relation to the evidence for consideration, the Board finds that the Veteran's disability picture is most consistent with his current 30 percent rating and his claim for an initial higher rating must be denied. The objective clinical evidence of record does not show that the Veteran experiences vision in 20/100 bilaterally or worse, anatomical loss of an eye, or no more than light perception in one eye. Indeed, the medical evidence of record indicates that the Veteran's corrected distance vision is no worse than 20/25 in the right eye and 20/30 in the left eye. The August 2012 VA examiner noted that the Veteran's visual acuity was good in both eyes. Moreover, examination showed a normal cornea and irises, pupillary membranes, and extraocular muscles. Furthermore, confrontation visual fields were full in both eyes. Therefore, his symptomatology specifically attributable to the diabetic retinopathy most closely fits within the criteria for the currently assigned 30 percent disability evaluation. In reaching this conclusion, the Board observes that the Veteran has visual field impairment. The August 2012 VA examination revealed a mildly constricted field in the right eye with a constricted filed with supernasal depression to 10 degrees in the left eye. The visual field loss of the left eye was compensated by the adequate field vision in the right eye. In order to warrant an evaluation in excess of 30 percent for visual field impairment, the evidence must show a bilateral concentric contraction of the visual field with the remaining field to less than 30 degrees. 38 C.F.R. § 4.79, Diagnostic Code 6080. Such findings are not shown in the present case. While supernasal depression to 10 degrees and up meridian depression to 26 degrees were noted during the 2012 examination, the remaining 6 meridians each exceeded 30 degrees. Furthermore, at no time has visual field impairment in the right eye been manifested contraction at any meridian to 30 degrees or less. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Higher Rating for Diabetes Mellitus The Veteran's diabetes mellitus is currently rated a 20 percent disability rating under Diagnostic Code 7913. See 38 C.F.R. § 4.119 (2012). Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires 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; and a 100 percent rating when the diabetes requires 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Veteran underwent a VA examination in June 2008. The examiner noted that the Veteran had never been hospitalized for ketoacidosis or hypoglycemic reactions. He currently took glyburide 10mg orally twice a day and meformin 500mg orally twice a day for diabetes control. He never had a heart attack or stroke or heart failure. He had hypertension since the late 1990's. He denied any neurological symptoms such as pain, burning, numbness or tingling of the extremities. He denied any gastroparesis or constipation symptoms. He had nocturia 2 to 3 times per night and daytime urinary frequency every 15-30 minutes. He had symptoms of erectile dysfunction for the past one to two years but had not undergone any formal medical evaluation for this. The diagnosis was diabetes mellitus type II currently under good control with two oral hypoglycemic medications and diet modification. His diabetes did not currently require restriction of physical activities to control blood sugars. The examiner noted that the Veteran had erectile dysfunction which was at least as likely as not due to his diabetes mellitus type II. Per the May 2012 Board remand instructions, the Veteran underwent a VA examination in August 2012. It was noted that the Veteran had diabetes mellitus that was managed by restricted diet and prescribed oral hypoglycemic agents. He did not require regulation of activities as part of medical management of his diabetes. He had no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. He did not have any progressive unintentional weight loss or loss of strength attributed to his diabetes mellitus. He had diabetic peripheral neuropathy, an eye condition, hypertension and erectile dysfunction that were all due to his diabetes mellitus. The Veteran also underwent a VA examination for his erectile dysfunction. He did not have a voiding dysfunction. He did have erectile dysfunction as a result of his diabetes mellitus type II. The Veteran's penis was not examined per the Veteran's request but he reported normal anatomy with no penile deformity or abnormality. Likewise, his testes were not examined per the Veteran's request but he reported normal anatomy with no testicular deformity or abnormality. As noted above, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require (1) insulin, (2) a restricted diet, and (3) regulation of activities. These criteria are conjunctive; all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991). The evidence of record further indicates that the Veteran has been placed on a restrictive diet to control his diabetes mellitus and that he has been prescribed oral hypoglycemic agents. Thus, two out of the three requirements for a higher disability evaluation are meet. However, there is no evidence of restriction of activity. Regulation of activities is defined as "avoidance of strenuous occupational and recreational activities". 38 C.F.R. § 4.119, Diagnostic Code 7913; see also Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). The objective medical evidence does not show that the Veteran's diabetes mellitus results in any regulation of activities. On the contrary, the June 2008 and August 2012 VA examiners specifically noted that the Veteran did not require regulation of activities as part of medical management of his diabetes. The Board therefore finds that no basis exists for the assignment of a schedular rating in excess of the already assigned 20 percent for diabetes under Diagnostic Code 7913. As noted above, the Veteran has erectile dysfunction as a result of his diabetes mellitus. A September 2008 rating decision granted a separate noncompensable rating for erectile dysfunction based on the June 2008 VA examination findings. While the Veteran has not specifically disagreed with this initial evaluation, the Board notes that the RO has characterized the Veteran's current diabetes mellitus disability as diabetes mellitus with erectile dysfunction. Erectile dysfunction is rated by analogy, to "penis, deformity, with loss of erectile power", Diagnostic Code 7522. See 38 C.F.R. § 4.20 (2012). The rating schedule provides a 20 percent rating for deformity of the penis with loss of erectile power. This is a conjunctive set of criteria; both must be present to warrant compensation at the sole authorized level, 20 percent. See Melson, supra. In this case, the medical evidence does not indicate that the Veteran has a penile deformity, and he does not contend otherwise. Where the criteria for a compensable rating under a diagnostic code are not met, as here, a noncompensable rating is awarded. See 38 C.F.R. § 3.31 (2012). Consequently, there is no basis for payment of compensation for erectile dysfunction under the rating schedule. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's PTSD, eye disability and diabetes mellitus, type II. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his PTSD, eye disability or diabetes mellitus. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to an initial rating in excess of 70 percent for PTSD is denied. Entitlement to an initial rating in excess of 30 percent for proliferative diabetic retinopathy with pseudophakia, both eyes is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs