Citation Nr: 1316532 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-13 836A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for diabetes mellitus. 3. Entitlement to a rating in excess of 10 percent for residuals of shrapnel wounds, to include scars on the chin and neck. 4. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1963 to September 1967. He is the recipient of the Purple Heart Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied the Veteran's claims for an increased rating for diabetes mellitus and shrapnel wounds of the chin and neck. In addition, the Veteran's claim for an increased rating for PTSD was partially granted, as a 70 percent rating was assigned, effective March 31, 2009. A decision as to the Veteran's claim for SMC based on the need for regular aid and attendance or by reason of being housebound was deferred until the March 2010 statement of the case (SOC), which then denied his claim. The Veteran failed, without explanation, to appear for a hearing scheduled before a Veterans Law Judge in February 2012. His hearing request is therefore deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). In November 2012, the instant matters were remanded for additional development. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand order with regard to the claims for an increased rating for PTSD and diabetes mellitus decided herein and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A review of the Virtual VA claims processing system reveals VA treatment records dated through February 2013; the Board notes that records dated through January 2013 were considered by the RO in a February 2013 supplemental statement of the case (SSOC). In March 2013, subsequent to the issuance of the February 2013 SSOC, VA treatment records dated through February 2013 were added to the Veteran's Virtual VA claims file. The Veteran has not waived RO consideration of this evidence. However, this new evidence is not relevant to the claims decided herein and such a waiver is not required. See 38 C.F.R. § 20.1304(c) (2012). The issues of entitlement to a rating in excess of 10 percent for residuals of shrapnel wounds, to include scars on the chin and neck, as well as entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas due to such symptoms as a depressed and anxious mood, excessive anger, avoidance, mild memory loss, nightmares and sleep impairments, diminished interest and impaired impulse control as unprovoked irritability without more severe manifestations that more nearly approximate total occupational and social impairment. 2. For the entire appeal period, the Veteran's diabetes mellitus is manifested by the need for dietary restrictions without the use insulin or an oral hypoglycemic agent. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. For the entire appeal period, the criteria for a rating in excess of 10 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated in April 2009, sent prior to the rating decision issued in July 2009, advised the Veteran of the evidence and information necessary to substantiate his claims for an increased rating for his PTSD and diabetes mellitus, and advised him of the evidence and information necessary to substantiate his claims. This letter advised him both of his and VA's respective responsibilities in obtaining such evidence and information. Additionally, this letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, various private treatment records and post-service VA outpatient treatment records have been obtained and considered. A January 2012 RO Memorandum contained a formal finding as to the unavailability of the Veteran's Social Security Administration (SSA) records. Finally, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded multiple VA examinations in conjunction with the claims on appeal, including VA examinations conducted in May 2009, August 2009 and December 2012, to determine the severity of his service-connected PTSD and diabetes mellitus. The Veteran has not alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected disabilities as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, the Veteran has not alleged that his service-connected disabilities have worsened in severity since his last VA examinations. Rather, he argues that the evidence reveals that his symptoms have been more severe than the currently assigned ratings for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for an increased rating and no further examination is necessary. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the November 2012 remand directives in obtaining the Veteran's updated VA outpatient treatment records and requesting his SSA records, as applicable to the instant claims, and as such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). A. PTSD The Veteran contends that the severity of his PTSD warrants a 70 percent rating; the Board notes that the Veteran appears to believe that this disability is rated as 50 percent disabling rather than the currently assigned 70 percent rating. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 70 percent rating is warranted where there is 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, 9411. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan, supra at 444. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, supra. An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but 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. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). A May 2009 VA psychological examination reflected the Veteran's complaints of nightmares, depression, excessive anger and irritation, nervousness and avoidance, including the avoidance of big gatherings and the news. He reported that he sometimes argued with his wife but that he did not have arguments with other people as he was not around other people. In addition, he reported that much of his sadness was related to his physical problems and the resulting limitations. Although he took medication for depression in the past, he reported that he did not like its side effects, as such medication impaired his concentration and worsened his mood, and that he took no psychiatric medication now. He reported being married for the last 36 years, that his relationship was "good" as his wife cared for his physical needs, that he had not had regular work in the last 20 years and that his two sons visited and helped around the house. The examiner noted that there were no records related to the Veteran's mental health treatment in the record. Mental status examination conducted by the May 2009 VA examiner found the Veteran's orientation, grooming and hygiene to be appropriate. Speech was noted to be clear with a good ability to express himself while affect was noted to be sad with crying at several times. Mood seemed to be depressed. Thinking was found to be logical and productive but somewhat circumstantial while thought content was found to be notable for preoccupation with events that occurred in Vietnam and his current physical problems. Relationships with others seemed fair with a low frequency of contact and self-esteem was found to be low due to his physical problems. Reasoning skills were noted to indicate the capacity for abstract thinking with an estimated intellectual functioning level in the average range. Judgment was found to be fair and insight was found to be limited. The examiner noted that the Veteran was more focused on his physical impairments than his mental problems and that the current intensity of his PTSD was moderate with impaired social relationships, occupational functioning, judgment and mood. A GAF of 50 was assigned due to an unstable mood, low social tolerance and an inability to maintain employment. A December 2012 VA Disability Benefits Questionnaire (DBQ) report reflected the Veteran's reports that he has "always" had a good relationship with his wife of 40 years, that his youngest child died three years ago in a car accident, and that he had frequent contact with his children and grandchildren. He reported that he had neighbors who visited him at home and that he rarely attended activities outside of the home. Current symptoms included nightmares one to two times per week, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and impaired impulse control as unprovoked irritability. The examiner noted that the Veteran had never obtained mental health services. A GAF of 53 was assigned due to occupational and social impairment with reduced reliability and productivity. The remaining VA outpatient treatment records were negative for findings or treatments related to PTSD. Following a review of the relevant evidence of record, which includes VA outpatient treatment records dated through February 2013, the Veteran's own statements, and the VA examination reports dated in May 2009 and December 2012, the Board concludes that the Veteran is not entitled to a rating in excess of 70 percent for his PTSD. In this regard, the Board finds that, for the entire appeal period, such disability is manifested by 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 that was intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting) and inability to establish and maintain effective relationships, without more severe manifestations that more nearly approximate total occupational and social impairment. In this regard, the Board finds that such symptomatology, to specifically include the Veteran's depressed and anxious mood, excessive anger, avoidance, nightmares and sleep impairments, diminished interest, mild memory loss and impaired impulse control as unprovoked irritability are contemplated in his current 70 percent rating. As indicated previously, a 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place and memory loss for names of close relatives, own occupation, or own name. Based on the evidence of record, the Board finds that the Veteran's PTSD does not result in total occupational and social impairment. With respect to the symptoms noted to be indicative of a 100 percent rating, the Board notes that, at his December 2012 VA examination, the Veteran was found to have mild memory loss such as forgetting names, directions or recent events. However, such memory loss was not found in the May 2009 VA examination and there was no indication that the Veteran had memory loss for names of close relatives, his own occupation or his own name. Moreover, he was able to detail his past occupational history and his family relationships during his December 2012 VA examination. Therefore, at most, the Veteran has occasional or episodic mild memory loss. However, as discussed below, the Board finds that, despite his mild memory loss, the Veteran's PTSD symptomatology on the whole does not more nearly approximate a 100 percent rating. In this regards, there is no evidence that the Veteran had gross impairment in thought processes or communications or that he was disoriented to time and place. Specifically, orientation was found to be appropriate while his speech was noted to be clear with a good ability to express himself in the May 2009 VA examination. Thought processes were also found to be logical and productive, but somewhat circumstantial, in the May 2009 VA examination. There is also no evidence of persistent delusions or persistent hallucinations in the record and the Veteran has not reported such symptoms. In addition, the Veteran has not reported, and there is no evidence in the record otherwise suggesting, that he was a persistent danger of hurting self or others or that he engaged in grossly inappropriate behavior. The Board further finds that the evidence fails to demonstrate that the Veteran neglects his personal appearance and hygiene. In this regard, the May 2009 VA examination reports found that his grooming and hygiene to be appropriate. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include nightmares and diminished interest. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a severity or frequency to result in total occupational and social impairment. The Board has also considered the Veteran's GAF scores assigned during the course of the appeal. In this regard, the May 2009 VA examiner assigned a score of 50, indicating serious symptoms. The December 2012 VA examiners assigned a GAF score of 53, indicating moderate symptoms. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). As the Veteran has been assigned GAF scores reflecting moderate to serious symptoms and the evidence of record, as detailed previously, supports such a score, the Board finds that the Veteran is not entitled to a rating in excess of 70 percent for PTSD. Therefore, as the Veteran's PTSD symptoms, as detailed previously, are contemplated by his 70 percent rating and, absent more severe symptoms, a higher rating is not warranted. In so holding, the Board notes that the Veteran's description of symptoms and limitations are deemed credible and consistent with the evidentiary record. The Board has previously awarded TDIU benefits based, in part, upon his testimony. However, to the extent that the Veteran opines that his symptomatology and limitations result in total social and occupational impairment, the Board places greater probative weight to the clinical findings and opinions by the medical examiners as they have greater expertise and training than the Veteran in evaluating a psychiatric disorder. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD; however, the Board finds that his symptomatology has been relatively stable throughout the appeal and, at no time, has met or more closely approximated total social and occupational impairment. Therefore, assigning staged ratings for such disability is not warranted. B. Diabetes Mellitus The Veteran contends that a 20 percent rating is warranted for his diabetes mellitus as he uses a restricted diet to control the disease. A 10 percent rating is warranted where diabetes mellitus is manageable by a restricted diet only. A 20 percent rating is warranted where the diabetes mellitus requires insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus 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. A 100 percent rating is warranted for diabetes mellitus 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. 38 C.F.R. § 4.119, 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. 38 C.F.R. § 4.119, 7913, Note (1). An August 2009 VA diabetes mellitus examination indicated that the Veteran's current treatment involved diet alone. A history of hospitalizations or surgery, episodes of hypoglycemic reactions or ketoacidosis and restriction in the ability to perform strenuous activities were denied. The Veteran's VA outpatient treatment records indicated that his diabetes mellitus was well-controlled through the use of diet. His VA prescription records were negative for insulin or hypoglycemic agents. The evidence of record establishes that the Veteran's diabetes mellitus was managed using a restricted diet only. The Veteran has not alleged, and the clinical evidence of record does not otherwise suggest, that insulin or oral hypoglycemic agents were required to manage his diabetes mellitus. Therefore, as the Veteran's diabetes mellitus symptoms are contemplated by his 10 percent rating and, absent more severe symptoms, a higher rating is not warranted. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected diabetes mellitus; however, the Board finds that his symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. C. Other Considerations Additionally, the Board has contemplated whether these matters should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD and diabetes mellitus with the established criteria found in the rating schedule. The Board finds that the Veteran's PTSD and diabetes mellitus symptomatology are fully addressed by the rating criteria under which such disability is rated. In this regard, all of the Veteran's psychiatric and endocrinology symptomatology are contemplated by the rating criteria, to include those symptoms which are not specifically enumerated. See Mauerhan, supra. There are no additional symptoms of his PTSD and diabetes mellitus that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). The Board notes that a November 2012 rating decision granted TDIU, effective March 31, 2009, the date of claims for increased rating. Further consideration of TDIU is therefore not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to a rating in excess of 70 percent for PTSD and to a rating in excess of 10 percent for diabetes mellitus. As such, that doctrine is not applicable in the instant appeals, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A rating in excess of 70 percent for PTSD is denied. A rating in excess of 10 percent for diabetes mellitus is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for increased rating for residuals of shrapnel wounds, to include scars on the chin and neck, as well as the claim to SMC, and that he is afforded every possible consideration. The Veteran contends that he is entitled to a 30 percent rating for residuals of shrapnel wounds, to include scars on the chin and neck. A VA scars examination was conducted in August 2009. The examiner found that the Veteran's head, face or neck did not contain any feature or set of paired features which showed gross distortion or asymmetry but made no further findings. However, findings regarding the characteristics of disfigurement as enumerated in 38 C.F.R. § 4.118, 7800 are required to properly adjudicate this matter. As such, the Board remanded this claim in November 2012 to allow such an examination to be conducted. However, there is no indication that such an examination was conducted or scheduled on remand. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, such an examination should be conducted. Additionally, as relevant to the Veteran's claim for SMC, the Board finds that such is inextricably intertwined with his claim of entitlement to increased rating for his residuals of shrapnel wounds, to include scars on the chin and neck. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). In this regard, the development ordered herein, to include conducting a VA scars examination, could be relevant to such claim as such may show the impact that the Veteran's service-connected disability has on his ability to functional independently. Therefore, consideration of this issue is again deferred. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder the Veteran's relevant VA treatment records since February 2013. 2. The Veteran should be afforded a VA scars examination to determine the severity of his residuals of shrapnel wounds, to include scars on the chin and neck. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies must be performed and all findings must be reported in detail. The examiner should specifically indicate whether there is disfigurement of the head, face, or neck with (i) one characteristic of disfigurement, (ii) visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement, (iii) with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement, or (iv) with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with six or more characteristics of disfigurement. The characteristics of disfigurement are: (1) a scar, 5 or more inches in length; (2) a scar, at least one-quarter inch wide at widest part; (3) surface contour of a scar that is elevated or depressed on palpation; (4) a scar that is adherent to underlying tissue; (5) hypo-or hyper-pigmented skin in an area exceeding 6 square inches; (6) abnormal skin texture in an area exceeding 6 square inches; (7) underlying soft tissue missing in an area exceeding 6 square inches; and (8) indurated and inflexible skin in an area exceeding 6 square inches. Unretouched color photographs should be considered when evaluating under these criteria (and must be associated with the claims file). The examiner should also specifically indicate the measurement of any of the above characteristics of disfigurement in square inches or centimeters. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs