Citation Nr: 1315196 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-31 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent prior to October 2, 2007, and in excess of 20 percent since October 2, 2007, for diabetes mellitus. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in November 2006 and January 2007 by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The November 2006 rating decision granted an increased 30 percent rating for PTSD effective from April 25, 2006, and established service connection for diabetes mellitus with an assigned 10 percent rating effective from January 2, 2004. A January 2007 rating decision denied entitlement to a TDIU. An earlier effective date for the 10 percent rating for diabetes mellitus was awarded in a July 2007 rating decision. In a December 2007 rating decision the RO granted an increased 20 percent rating for diabetes mellitus effective from October 2, 2007. The Board remanded the issues on appeal for additional development in July 2011. The issue of entitlement to service connection for peripheral neuropathy of the lower extremities was also remanded in July 2011, but service connection was subsequently granted in a February 2012 rating decision. The Veteran is shown to have been adequately notified of the award and that he has expressed no disagreement with the assigned ratings or effective dates. Therefore, that appeal is considered to have been fully resolved. A claim for a total disability rating based upon individual unemployability (TDIU) is generally a rating theory and not a separate claim for benefits. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU rating under 38 C.F.R. § 4.16(b), although similar are based on different factors. Kellar v. Brown, 6 Vet. App. 157 (1994). Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is solely a disability-by-disability consideration rather than based on the combined effect of a veteran's service-connected disabilities. Johnson v. Shinseki, ___Vet. App.___, No. 10-1785, 2013 WL 1224810 (Vet. App. Mar. 27, 2013). The Board finds that service connection in this case is established for more than one disability and entitlement to a TDIU is appropriately addressed as a separate issue on appeal. The issues of entitlement to a rating in excess or 30 percent for PTSD and entitlement to a TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's diabetes mellitus prior to October 2, 2007, was manifested by no more than the required use of a restricted diet without requiring medication or regulation of activities. 2. The Veteran's diabetes mellitus since October 2, 2007, is manifested by no more than the required use of an oral hypoglycemic agent and a restricted diet without requiring insulin or regulation of activities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his original diabetes mellitus claim by correspondence dated in May 2006. He was provided additional notice concerning his appeal for a higher rating in May 2008 and the issue was readjudicated in November 2012. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, Virtual VA records, private medical opinions and treatment records, Social Security Administration (SSA) records, and the Veteran's statements in support of his claim. The development requested as to this issue on remand in July 2011 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained as to this issue are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Increased Rating Disability rating are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his physical or mental condition. It is thus essential, both in the examination and in the rating of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2012). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2012). Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that 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. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of 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 (2012). Compensable complications of the diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2012). The phrase regulation of activities means avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The pertinent evidence of record includes a January 2, 2004, VA treatment report from S.P., M.D., which provided a diagnosis of diabetes mellitus that was diet controlled. An April 6, 2006, report by Dr. S.P. noted diabetes mellitus that was diet controlled to that point. A medical statement signed by Dr. S.P. on April 19, 2006, marked a form indicating that the Veteran's diabetes mellitus required insulin and restricted diet or oral hypoglycemic agent and restricted diet. It was also noted that he had neurological complications of the lower extremities directly due to diabetes mellitus. A September 2006 VA treatment report noted the Veteran reported he was not on any diabetes mellitus medications. In his March 2007 notice of disagreement the Veteran stated he was taking medication for diabetes. On VA examination in July 2007 the Veteran reported he was not on a restricted diet nor taking medication for diabetes mellitus. It was noted that his current treatment included a prescription for antihypoglycemics with instructions to chew one tablet by mouth if needed for hypoglycemia. The examiner provided a diagnosis of diabetes mellitus, but noted that his visual impairment, cardiovascular disease, and neurological disease were not complications of his diabetes. VA treatment records dated October 2, 2007, from Dr. S.P. noted the Veteran requested an appointment due to glucose readings running over 200. It was noted that he had never been on any medications for his diabetes mellitus, but that he felt he now needed to be on medication. The diagnoses included diabetes mellitus with glucose now elevated with diet alone. Metformin was added to the treatment plan. A December 2007 VA examination report noted the Veteran had excellent blood sugar control until recently in 2007 when he needed Metformin. A May 2011 report noted his weight was 203 pounds. Laboratory findings in June 2011 were within acceptable limits for nonfasting blood work. A December 2011 VA examination report noted the Veteran's treatment for diabetes mellitus included a prescribed oral hypoglycemia agent, but did not require regulation of activities. It was further noted that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. He had no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization over the past 12 months. It was noted he had progressive unintentional weight loss attributable to diabetes mellitus, but no additional information was provided. The examiner found there were no additional disorders believed to be at least as likely as not due to diabetes mellitus. The Veteran's diabetes was noted to have an impact on his ability to work, but it was the examiner's opinion that diabetes mellitus alone, without considering any known complications, would not preclude either sedentary or physical employment. Virtual VA electronic records include a June 2012 VA treatment report noting the Veteran denied any weight loss and that he stated his blood sugar readings had been over 300, post-prandial. It was noted did not bring his records or his monitor and, in essence, that VA laboratory reports indicated his diabetes was controlled. The examiner noted there was questionable compliance with diet and that counseling as to diet was provided. An August 2012 report noted he reported a 40 pound weight loss since January 2012 and that his current weight was 154 pounds. Subsequent records are negative for evidence of an insulin requirement for diabetes mellitus. Based upon the evidence of record, the Board finds the Veteran's diabetes mellitus prior to October 2, 2007, was manifested by no more than the required use of a restricted diet without requiring medication or a regulation of activities. Although the evidence includes inconsistent statements from the Veteran as to whether he was taking medication for his diabetes prior to this date and from his VA medical care provider, Dr. S.P., as to whether medication was required or if he was actually taking any medication for his diabetes, the Board finds the overall evidence is persuasive that treatment for his diabetes did not require an oral hypoglycemic agent until October 2, 2007. The Board acknowledges that Dr. S.P. stated that the Veteran's diabetes required medication in a form signed on April 19, 2006, and that the July 2007 VA examiner noted current treatment included antihypoglycemics with instructions to chew one tablet by mouth if needed for hypoglycemia. The statement from Dr. S.P. as to a requirement of medication, however, is inconsistent with the subsequent medical evidence, including Dr. S.P.'s own treatment reports, and with the antihypoglycemics prescription instructions on an if needed basis. The Veteran is noted to be competent to provide evidence as to observable symptomatology. However, in determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995); Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir.2006) (VA can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341 (1999) (Board can consider appellant's own personal interest in the outcome of the case). The Board finds that, based upon all of the evidence, the Veteran's statements as to whether he used medication for his diabetes prior to October 2, 2007, and the April 19, 2006, statement from Dr. S.P. warrant a lesser degree of credible weight. That evidence is demonstrated to have been provided in support of increased compensation rather than to have been associated with a required treatment for diabetes mellitus. Furthermore, that evidence was later refuted by the Veteran's statement and by Dr. S.P. The October 2, 2007, treatment report from Dr. S.P. is found to an more accurate assessment of the Veteran's past treatment requirements and with the severity of his disability at that time. The Board also finds that the Veteran's diabetes mellitus since October 2, 2007, is manifested by no more than the required use of an oral hypoglycemic agent and a restricted diet without requiring insulin and a regulation of activities. Although the Veteran and his service representative have asserted, in essence, that a higher rating is warranted due to diabetes mellitus that is uncontrolled, there is no indication that at any time since October 2, 2007, his treatment has required insulin. The criteria for a higher schedular VA compensation rating clearly state that higher ratings are only assigned when insulin is required for treatment. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Determinations concerning whether the treatment plan should require insulin are matters of medical judgment beyond the jurisdiction of a VA compensation appeal. 38 C.F.R. § 20.101(b) (2012). The evidence does not show regulation of activities or use of insulin. Therefore, the claim for a higher schedular rating for diabetes mellitus must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances related to this service-connected disability that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. There is a three-step inquiry for determining whether a Veteran is entitled to extraschedular rating consideration. First, VA must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the level of disability and symptomatology and is found to be inadequate, then VA must 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 rate 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds the Veteran's service-connected diabetes mellitus is adequately rated under the available schedular criteria and that the objective findings of impairment are well documented. There is no credible evidence of disability more severe than the assigned schedular ratings and the opinion of the December 2011 VA examiner is persuasive that the disability would not preclude either sedentary or physical employment. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service is not warranted. 38 C.F.R. § 3.321 (2012). The Board further finds that marked interference with employment, beyond that anticipated by the assigned ratings, and frequent hospitalization due to diabetes mellitus are not shown. Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for his diabetes mellitus and the claim must be denied. ORDER Entitlement to a rating in excess of 10 percent prior to October 2, 2007, and in excess of 20 percent since October 2, 2007, for diabetes mellitus is denied. REMAND Although the issues remaining on appeal have been previously remanded for additional develop, the Board finds that the medical opinions of record cannot be reconciled for an adequate determination. The evidence includes conflicting medical opinions as to the appropriateness of a diagnosis of PTSD and as to the Veteran's ability to work based upon his service-connected disabilities. It is significant to note that a January 2012 statement was received from M.G., Ph.D., expressing disagreement with the diagnoses and opinions provided a VA psychologist in an October 2011 examination report, but that the symptoms believed to be due to PTSD were not identified. It was noted that the "previously diagnosed symptoms of PTSD cannot be wholly accounted for by the diagnosis provided" in the most recent VA examination report. The record also includes conflicting medical opinions over the course of this appeal concerning the Veteran's ability to work due to his service connected psychiatric and physical disabilities. VA examination reports in December 2011 show the Veteran was found to have no mental or physical disabilities that impacted his ability to work. However, a March 2012 addendum report from a January 2012 VA peripheral nerves examination found that the Veteran had likely small fiber peripheral neuropathy and that any type of employment that required walking or standing for prolonged periods of time would be difficult or impossible. The criteria for a 70 percent rating for a mental disorder require occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2012). In the context of a 70 percent rating, the rating criteria require not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas and that the regulation requires an ultimate factual conclusion as to the level of impairment in most areas. Vazquez-Claudio v. Shinseki, ___F.3d.___, 2013 WL 1395804 (Fed. Cir. Apr. 8, 2013). An examiner should be requested to provide an opinion as to whether or not a Veteran's service-connected disabilities render him unable to secure and maintain substantially gainful employment, to include consideration of the disabilities' functional impairment and how that impairment impacts on physical and sedentary employment. The Board finds that additional development is required in this case for an adequate determination of the issues remaining on appeal. VA medical opinions should be obtained to address the severity of the Veteran's service-connected PTSD and whether he is unemployable as a result of all of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues remaining on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All efforts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of the RO's unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA mental disorders examination for an opinion as to the nature and severity of his service-connected PTSD. All indicated examinations, tests, or studies necessary for an adequate opinion should be conducted. The examiner should acknowledge the pertinent VA and non-VA medical opinions of record and identify all manifest PTSD symptoms with opinions as to whether those symptoms have caused an occupational and social impairment with reduced reliability and productivity; an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or a total occupational and social impairment. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's service-connected disabilities (PTSD, diabetes mellitus, and bilateral lower extremity peripheral neuropathy) render him unable to secure and maintain substantially gainful employment, to include describing the disabilities' functional impairment and how that impairment impacts on physical and sedentary employment. Opinions should be provided based on any examination findings; the credible lay evidence of prior injuries, symptom manifestation, and treatment; a review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs