Citation Nr: 1322555	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  09-26 643	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for psoriasis.

2.  Entitlement to service connection for psoriatic arthritis.  

3.  Entitlement to service connection for a low back disorder.

4.  Entitlement to service connection for ischemic heart disease.  

5.  Entitlement to service connection for cold injury residuals.

6.  Entitlement to service connection for an eye disorder other than retinopathy, (including Bell's Palsy, right eyelid).  

7.  Entitlement to an initial disability evaluation (rating) in excess of 20 percent for diabetes mellitus (DM). 

8.  Entitlement to an initial disability evaluation (rating) in excess of 50 percent for posttraumatic stress disorder (PTSD).

9.  Entitlement to an initial disability evaluation (rating) for right lower extremity peripheral neuropathy, in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent from March 24, 2010. 

10.  Entitlement to an initial disability evaluation (rating) for left lower extremity peripheral neuropathy, in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent from March 24, 2010. 

11.  Entitlement to an initial disability evaluation (rating) in excess of 20 percent for right upper extremity peripheral neuropathy. 

12.  Entitlement to an initial disability evaluation (rating) in excess of 20 percent for left upper extremity peripheral neuropathy. 

13.  Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).  

14.  Whether the RO committed clear and unmistakable error (CUE) in assigning an effective date of February 24, 2004 for the grant of service connection and the assignment of a 10 percent disability rating for hypertension.  


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney-at-Law


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel 



INTRODUCTION

The Veteran, who is also the appellant, had active service from July 1967 to April 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Des Moines, Iowa.  


FINDINGS OF FACT

1.  Psoriasis had its onset in service.  

2.  Psoriatic arthritis is etiologically related to the service-connected psoriasis.  

3.  The current lumbar stenosis with radiculopathy originated in service.  

4.  Ischemic heart disease has not been shown to be present at any time.  

5.  Residuals of a cold injury have not been demonstrated at any time.

6.  The eye disorder of Bell's Palsy is etiologically related to the service-connected DM.  

7.  Throughout the period in question, the Veteran's DM has been treated with insulin and a restricted diet but has not required regulation of activities. 

8.  For the entire rating period, the Veteran's PTSD has not been characterized 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: obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships.

9.  Diabetic peripheral neuropathy of the left lower extremity has caused no more than moderate impairment throughout the appeal period.  

10.  Diabetic peripheral neuropathy of the right lower extremity has caused no more than moderate impairment throughout the appeal period.  

11.  Diabetic peripheral neuropathy of the left upper extremity has caused no more than mild impairment throughout the appeal period.  

12.  Diabetic neuropathy of the right upper extremity has caused no more than mild impairment throughout the appeal period.  

13.  The Veteran's service-connected disabilities, when evaluated in association with educational attainment and occupational experience, preclude all forms of substantially gainful employment.

14.  In an August 2004 rating decision, the RO, in part, granted service connection for hypertension and assigned a 10 percent disability evaluation effective February 24, 2004, the Veteran was apprised of his appellate rights later the same month, but did not file a timely notice of disagreement (NOD) with regard to the effective date assigned.  

15.  The August 2004 rating decision, insofar as it granted service connection for hypertension and assigned an effective date of February 24, 2004, was supportable by the evidence then of record and was consistent with the applicable law and regulations extant at that time.



CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, psoriasis was incurred in service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

2.  Psoriatic arthritis of multiple joints was caused by the Veteran's service-connected psoriasis.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012).

3.  Resolving reasonable doubt in favor of the Veteran, lumbar stenosis with radiculopathy was incurred in service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

4.  Ischemic heart disease was not incurred in or aggravated by service, nor may it be presumed to have been incurred during service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

5.  Cold injury residuals were not incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

6.  Bell's Palsy of the right eyelid and its resulting residuals was caused by the Veteran's service-connected DM.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012).

7.  The criteria for an initial disability evaluation in excess of 20 percent for DM have not been met or more nearly approximated for any period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.119, DC 7913 (2012). 

8.  The criteria for an initial disability evaluation in excess of 50 percent for PTSD have not been met or more nearly approximated for any period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

9.  Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability evaluation of 20 percent for diabetic peripheral neuropathy of the right lower extremity have been met for the time period prior to March 24, 2010.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012).

10.  The criteria for an initial disability evaluation in excess of 20 percent for diabetic peripheral neuropathy have not been met or approximated for any period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012).

11.  Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability evaluation of 20 percent for diabetic peripheral neuropathy of the left lower extremity have been met for the time period prior to March 24, 2010.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012).

12.  The criteria for an initial disability evaluation in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity have not been met for any period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012).

11.  The criteria for an initial disability evaluation in excess of 20 percent for diabetic neuropathy of the right upper extremity have not been met or more nearly approximated for any period .  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8512 (2012). 

12.  The criteria for an initial disability evaluation in excess of 20 percent for diabetic neuropathy of the left upper extremity have not been met or more nearly approximated for any period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8512 (2012).

13.  Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012).

14.  The August 2004 rating decision, insofar as it granted service connection for hypertension and assigned a 10 percent disability evaluation effective February 24, 2004, does not contain CUE.  38 U.S.C.A. §§ 5101, 5109A, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.1, 3.105(a), 3.114, 3.151, 3.155, 3.157, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).

The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

As it relates to the issues of service connection for psoriasis, psoriatic arthritis, lumbar stenosis with radiculopathy, Bell's Palsy, and entitlement to a TDIU, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision on this claim, as it relates to these issues, further assistance is not required to substantiate that element of the claim.

As it relates to the claim for service connection for cold injury residuals of the hands and feet, the RO, in a February 2009 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim.  The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain.  The letter further told him to submit relevant evidence in his possession.  The February 2009 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim.

As it relates to the claim for service connection for ischemic heart disease, the RO, in a March 2011 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim.  The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain.  The letter further told him to submit relevant evidence in his possession.  

With regard to the issues of initial higher evaluations for PTSD, DM, peripheral neuropathy of the bilateral upper extremities and peripheral neuropathy of the bilateral lower extremities, because the Veteran's appeal arises from his disagreement with the initial ratings following the grants of service connection no additional notice is required.  The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date).

As it relates to the duty to assist and all issues, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes service treatment records, VA treatment records, private treatment records, VA examination reports, and lay evidence.  No additional pertinent evidence has been identified by the claimant. 

As it relates to the necessity for an examination, as to the issue of service connection for residuals of cold injury, the Board notes that the Veteran was afforded a VA examination in March 2009.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be adequate for rating purposes.  The examination report provided a history supplied by the Veteran and detailed examination results and provided sufficient information to properly address the Veteran's claim and also provided an opinion as to whether the Veteran currently had residuals of a cold injury.  

As it relates to the necessity for an examination and the issue of service connection for ischemic heart disease, the Board notes that an opinion was obtained as to whether the Veteran had ischemic heart disease in March 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The examination report provided a detailed history, including results from previous examinations, and provided sufficient information and an opinion with rationale to properly address the Veteran's claim.

As to the appeal for a higher initial evaluation for PTSD, the Veteran has been afforded numerous VA examinations throughout the course of the appeal, including in December 2005, August 2006, March 2010 and October 2012.  The examination reports provided a detailed history and comprehensive examination results to properly address the Veteran's claim.

As to the appeal for a higher initial evaluation for DM, the Veteran has been afforded numerous VA examinations throughout the course of the appeal, including in December 2005, March 2010, March 2011, and December 2012.  The examination reports provided a detailed history and comprehensive examination results to properly address the Veteran's claim.

As to the appeals for higher initial evaluations for bilateral peripheral neuropathy of the upper and lower extremities, the Veteran has been afforded numerous VA examinations throughout the course of the appeal, including in December 2005, January 2008, March 2010, and December 2012.  The examination reports provided a detailed history and comprehensive examination results to properly address the Veteran's claim.

As to the issue of whether clear and unmistakable error was committed in assigning an effective date of February 24, 2004 for the grant of service connection for hypertension, the Board finds that the VCAA is not applicable to the claim of CUE in the prior rating decision, as a matter of law.  The Court has held that the VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter).  See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). 

The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements by him and through his attorney and by being afforded the opportunity to appear at a hearing if so desired.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal.  Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further notice or action is necessary to assist the Veteran in substantiating this claim.

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a) (West 2002).  In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 

Service Connection Legal Authority

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In this case, arthritis and ischemic heart disease are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service under 38 C.F.R. § 3.303(b) apply.  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

The claimed right eye disorders; psoriasis, low back disorder, and cold injury residuals are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker, 708 F.3d 1331.

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis or cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id. 

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.


Service Connection for Psoriasis

The Veteran maintains that his psoriasis had its onset in service, or, in the alternative, is caused and/or aggravated by his service-connected PTSD.  

The evidence is in equipoise as to whether psoriasis had its onset in service.  A review of the Veteran's service treatment records reveals no complaints or findings of psoriasis in service.  At the time of the March 1971 service separation examination, normal findings were reported for the skin.  

In support of his claim, the Veteran has submitted a November 2005 statement in support of claim from his wife indicating that upon his returning home from Vietnam her husband had broken out in heat rash and psoriasis covering most of his body.  In a November 2005 statement, the Veteran's mother-in-law indicated that she could confirm that upon the Veteran's returning from Vietnam, he had developed heat rash and psoriasis while serving there.  She stated that the Veteran was seen by their family physician the day after his arrival home. 

In a July 2005 treatment report, prepared in conjunction with back/arthritis problems, J. G., M.D., indicated that of interest was that the Veteran reported that he had had psoriasis on his skin since the late 1960's with it currently being on several locations on the upper extremities, near the knees, on the back, and behind his left ear.  

At the time of a December 2005 VA examination, the Veteran reported that his psoriasis developed in service but he was not treated for it at that time.  He reported that the psoriasis was primarily on his elbows, knees, hairline, and back.  It seemed to be worse during the Winter.  Following examination, the examiner rendered a diagnosis of mild psoriasis.  She opined that it was less likely as not caused by or a result of the Veteran's military service but that it was at least as likely as not that stress incurred during this Veteran's military service was a contributing factor in the frequency and severity of the psoriasis.  

In an April 2006 statement, J. W. indicated that during November 1968 he and the Veteran were stationed together.  He stated that when the Veteran returned home from Vietnam, he could see psoriasis on his arms and elbows.  

At the time of an August 2006 VA examination, the Veteran reported that he had his initial outbreak of psoriasis in service and that this had not changed much over the years, always being on the elbows, knees, back, and along the hairline.  Winter was worse than summer.  Following examination, the examiner diagnosed the Veteran as having mild psoriasis.  The examiner stated that based upon the available treatment records and the lack of medical records shortly after release from active military service, there was no medical evidence that this condition existed when the Veteran separated from service.  The examiner indicated that the lay statements found in the file were observations that were written down many years after service (approximately 35 years) after the alleged onset of the skin condition.  The examiner further indicated that there was no known causal relationship of PTSD and psoriasis.  

In May 2009, a VA opinion was obtained as to the relationship between the Veteran's psoriasis and period of service and/or his service-connected PTSD.  The examiner observed that there was no evidence of the Veteran being treated for skin rash or psoriasis in the STRs and that normal findings were reported for the skin at separation.  

The examiner also made reference to a web article addressing the causes of psoriasis, which noted that many people saw an increase in their psoriasis when emotional stress was increased.  The article also indicated that among the exacerbating causes of plaque psoriasis were psychogenic/emotional factors, with many patients reporting an increase in psoriasis severity with psychological stress.  It was noted that a clear cause and effect relationship between disease exacerbation and stress unfortunately had not been proven.  It was indicated that patients might show a decreased capacity to cope with their treatment regimen with higher levels of stress.  

The examiner stated that the Veteran was contending that his psoriasis was either due to the stress he experienced in service, his PTSD, or his DM.  As to the first contention, the examiner indicated that as there was no evidence that he had psoriasis in service, the stress he alleges that he was experiencing did not cause him to have psoriasis years later.  The examiner further indicated that although it was not proven that stress caused psoriasis, the condition may flare during times of acute stress, although this was not definitively proven.  The examiner stated that a remote stressor would not cause psoriasis years down line, in the future.  The examiner further indicated that there were no research articles that definitively proved that PTSD caused psoriasis.  Therefore, to assume that his PTSD had caused his psoriasis would be resorting to mere speculation.  The examiner indicated that psoriasis was a fairly common ailment affecting three percent of the general population.  

After a review of all the evidence, the Board finds that the evidence is in equipoise as to whether the currently diagnosed psoriasis had its onset/was incurred in service.  While the service treatment records do not reveal that the Veteran was treated for or diagnosed as having psoriasis in service, the Veteran has indicated that he did not receive treatment for this disorder while in service.  Moreover, while there are no treatment records in close proximity to service revealing treatment for or diagnoses of skin problems, to include psoriasis, the Veteran stated he has tried to obtain treatment records prior to the 1980's and they are not available.

The Veteran maintains that his psoriasis started in service and has continued to the present day.  His contentions are supported by statements from his wife and other relatives that he came home from the service with heat rash and psoriasis and that he was treated by the family physician for this condition, along with other conditions, the day after his return from service. 

The Board further notes that there are conflicting opinions with regard to the Veteran's psoriasis and its relationship to his period of service and/or his PTSD.  The November 2005 VA examiner opined that his psoriasis was related to his in-service stress.  The August 2006 VA examiner found no relationship between the Veteran's PTSD and psoriasis.  The March 2009 VA examiner, while indicating that there was no relationship between the Veteran's PTSD and his psoriasis, did note that, although it was not proven that stress caused psoriasis, the condition may flare during times of acute stress, although this was not definitively proven.

In the current case, the Board will resolve doubt in the Veteran's favor as to whether or not his psoriasis had its onset in service.  Although the Veteran's treatment records do not demonstrate treatment or findings of psoriasis in service, the Board finds the Veteran's statements that he had psoriasis in service are credible as they are supported by statements received from individuals who were familiar with the Veteran and observed his skin condition upon his return from service.  Moreover, these individuals have indicated that the Veteran was treated for his skin problems immediately upon his return from service by his private physician.  Furthermore, while the VA examiner's opinions are conflicting, the general concensus from all of the opinions is that stress is a precipitating, or at least an aggravating factor, for psoriasis.  As the Veteran is service-connected for PTSD due to stress he encountered in service, it must follow that he was exposed to stress in service because that is when he acquired the PTSD symptoms.  While the March 2009 VA examiner indicated that it had not been definitively proven that stress caused and/or aggravated psoriasis, the granting of service connection for a disability is the reasonable doubt standard, so it does not require such definitive proof.  

The Board has found the Veteran's statements that he had psoriasis in service credible; that the medical nexus between psoriasis and stress has been shown to be at least in equipoise, warranting resolving reasonable doubt in favor of the Veteran on that issue; and that the Veteran has been shown to have encountered stress during service by way of service connection being in effect for PTSD.  For these reasons, and resolving reasonable doubt in favor of the Veteran, service connection is warranted for psoriasis.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Service Connection for Psoriatic Arthritis

Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability).  To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran maintains that his current psoriatic arthritis arises from his now service-connected psoriasis.  

Treatment records associated with the claims folder reveal that at the time of a December 2005 VA neurological consult, the VA physician indicated that the Veteran had psoriatic arthritis that was secondary to the psoriasis that occurred in the military.  At the time of the August 2006 VA examination, the VA examiner opined that the Veteran had psoriatic arthritis of multiple joints secondary to his psoriasis.  

Based upon the above, the Veteran has satisfied the three elements necessary for a grant of service connection for psoriatic arthritis - a current disability of arthritis; a service-connected disability of psoriasis; and nexus evidence, in the form of two medical opinions, showing a relationship between the service-connected psoriasis and the psoriatic arthritis.  Given the foregoing, service connection for psoriatic arthritis, is warranted. 

Service Connection for a Low Back Disorder

The Veteran maintains that his low back disorder had its onset in service.  He has reported that while in the military in Okinawa, he was trying to check out and jumped off a back dock that was 4-5 feet tall.  He stated that he became hung up and twisted his back and that he had had back problems since that time, including arthritis.  He indicated that once he got home, he went to the doctor, but that physician was now deceased.  

The evidence is in equipoise as to whether the Veteran's current diagnosed back disability originated in service.  A review of the Veteran's service treatment records reveals no complaints or findings of back problems in service.  At the time of the Veteran's March 1971 service separation examination, normal findings were reported for the spine.  

Treatment records obtained in conjunction with the Veteran's claim reveal that he was seen with complaints of back pain in 1985.  History taken at that time revealed that the Veteran had been in a motor vehicle accident where he had sustained whiplash in 1982.  At the time of the August 1985 visit, the Veteran reported that he had left buttock pain which would go to the thigh and calf.  Occasionally it would go into the low back.  The Veteran indicated that his back had given out on him for the past four years, which would occur about every 18 months.  He stated that towards the end of his work shift he would have a nagging backache.  In September 1985, the Veteran underwent a microlaminectomy/microdiskectomy of L4-5 on the left.  

In support of his claim, the Veteran has submitted a November 2005 statement from his wife indicating when returning home from Okinawa to be discharged, he had sustained back trauma.  It was indicated that he was treated by the family physician the day after his arrival.  In a November 2005 statement, the Veteran's mother-in-law indicated that she could confirm upon the Veteran's arrival from Okinawa, he had sustained back trauma.  She noted that he was treated by their family physician the day after his return from service.  The Veteran's brother and sister-in-law indicated that upon the Veteran's return from Okinawa, they observed pain from a back injury that the Veteran had sustained.  

At the time of a November 2005 neurological consult, the Veteran was noted to have lumbar stenosis with lumbar radiculopathy.  The VA neurologist opined that the lumbar stenosis and radiculopathy more likely than not resulted from the injury the Veteran incurred while he was in the service.  

In an April 2006 statement, J. W. indicated that he was aware of the Veteran's back condition and that he had hurt it in Okinawa.  He noted that when he first met the Veteran he had no problems but when he came home from Vietnam, he could see the pain and problems that the Veteran was having.  

At the time of an August 2006 VA examination, the Veteran reported that he had had low back pain ever since military service.  The Veteran noted having constant pain with burning like pain in the low back which generally stayed in the low back.  The Veteran again stated that he injured his back when he jumped off a back dock and became twisted and jammed his back.  He indicated that he did not receive treatment in service but was seen by his local provider when he returned from Okinawa.  The examiner observed that the Veteran had had an L4 laminectomy about 18 years ago due to a herniated disc, approximately 1988.  Following examination, the examiner rendered a diagnosis of lumbar stenosis with radiculopathy.  

In a June 2007 statement, three of the Veteran's relatives indicated that they had witnessed the Veteran having back problems when visiting him in 1985.  

While the service treatment records do not reveal that the Veteran was treated for, or diagnosed as having, a low back disorder in service, the Veteran has indicated that he did not receive treatment for this disorder while in service.  He has reported that he injured his back on his way home from Okinawa and that he was seen by the family physician the next day.  Moreover, while there are no treatment records in close proximity to service revealing treatment for, or diagnoses of, low back problems, the Veteran stated he has tried to obtain treatment records prior to the 1980's and reported that they are not available.

The Veteran maintains that his low back problems began in service and have continued to the present day.  His contentions are supported by statements from his wife and other relatives that he came home from the service with back trauma and that he was treated by the family physician for this condition, among others, the day after his return from service.  There are also several statements noting the Veteran's back problems since that time period.  

The Board further observes that, at the time of the November 2005 neurological consult, the VA neurologist specifically opined that the Veteran had lumbar stenosis and radiculopathy secondary to the back injury he sustained in service.  There are no other negative opinions of record.  

In the current case, the Board will resolve doubt in the Veteran's favor as to whether or not his current low back disorder had its onset in service.  Although the Veteran's treatment records do not demonstrate treatment or findings of a low back disorder in service and post-service treatment records show no complaints of or treatment for many years after service, the Board finds that the Veteran's statements that he injured his back in service are credible as they are supported by statements received from individuals who were familiar with the Veteran and observed his back problems upon his return from service.  Moreover, these individuals have indicated that the Veteran was treated for back problems immediately upon his return from service by his private physician.  Furthermore, the only medical opinion of record links the Veteran's current lumbar stenosis and radiculopathy to his period of service.  

Given that the Board has found the Veteran's statements that he sustained a back injury in service credible and that a medical nexus between his current low back disorders and service has been demonstrated, and resolving reasonable doubt in favor of the Veteran, service connection is warranted for lumbar stenosis and lumbar radiculopathy.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for Ischemic Heart Disease

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  38 C.F.R. § 3.307(d)(6)(i).  Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(d)(6)(iii).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id. 

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2.  For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).  Agent Orange (AO) is generally considered an herbicide agent and will be so considered in this decision. 

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). 

Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999).  "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner."  Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009).  A statistical correlation between AO and a disease not on the presumptive list may not be the only basis for a positive nexus opinion, it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered.  Polovick, 23 Vet. App. at 53-54

As noted above, ischemic heart disease is a presumptive disease when the Veteran has been exposed to AO.  The Board finds that the Veteran has been exposed to AO.  

The Veteran maintains that he currently has ischemic heart disease related to his period of service, to include by way of exposure to AO.  

The Board finds that the Veteran does not have ischemic heart disease and has not had ischemic heart disease at any time.  A review of the Veteran's service treatment records reveal no complaints or findings of ischemic heart disease.  Ischemic heart disease findings have also not been shown in post-service treatment records.  

In March 2011, a VA opinion was obtained with regards to whether the Veteran had ischemic heart disease.  The examiner indicated that the entire claims folder with all available medical evidence was reviewed, including electronic VA medical records.  The examiner stated that there was no objective medical evidence supporting a diagnosis of ischemic heart disease in the Veteran.  The examiner observed that a February 2008 myocardial perfusion scan was negative for ischemia.  The examiner further observed that a February 2008 echocardiogram showed an ejection fraction of greater than 50 percent.  The examiner also observed that a February 2008 EKG showed normal sinus rhythm with no evidence of ischemic changes.  The examiner further noted that the Veteran's chest pain had been deemed non-cardiac in origin.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and, therefore, the decision based on that interpretation must be affirmed). 

The United States Court of Appeals for the Federal Circuit has held that. for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

While the Veteran may be competent to report having chest pain, he has not been shown to have the requisite training or credentials needed to ascertain whether he currently has ischemic heart disease as this is a medically complex question.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  The competent evidence, consisting of in-service and post-service treatment records, along with the March 2011 VA examiner's opinion following a thorough review of the claims folder, affirmatively shows that the Veteran does not currently have ischemic heart disease. 

Because a current disability has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309.  As explained, there is no current, competent evidence of ischemic heart disease.  As such, the criteria for service connection have not been met, and the Veteran's claim for service connection for ischemic heart disease must be denied.

Service Connection for Cold Injury Residuals

The Veteran maintains that he currently has cold injury residuals resulting from his service in Alaska.  

The Board finds that the weight of the evidence against a current disability of residuals of cold injury.  A review of the Veteran's service treatment records reveal no complaints or findings of cold injury residuals.  Cold injury residuals have also not been shown in post-service treatment records.  

The Board does note that the Veteran has been found to have peripheral neuropathy of the upper and lower extremities; however, this has been linked to his service-connected diabetes resulting from exposure to AO in service.  VA is precluded from compensating the Veteran for the very same symptoms as those that are part and parcel of an already service-connected disability.  See Esteban v. Brown, 6 Vet. App. 259 (1994), citing 38 C.F.R. § 4.14 VA's anti-pyramiding provision.  Therefore, the Board cannot consider the symptoms resulting from the service-connected peripheral neuropathy when addressing the claim for cold injury residuals.  

In March 2009, the Veteran was afforded a VA cold injury examination.  The examiner indicated that the claims folder was reviewed.  She stated that the Veteran's service treatment records reveal that he was seen for multiple other concerns and issues but never for frostbite.  She noted that the Veteran was stationed in Alaska while in the Navy.  The examiner observed that the examination at service separation revealed no skin or extremity abnormalities.  

The VA examiner in March 2009 indicated that the Veteran alleged the onset of his cold injuries approximately two and one-half years earlier.  The Veteran reported that he noticed that his hands and feet were more cold sensitive over the past 2.5 years.  He stated that his doctor felt that this was due to his neuropathy.  He indicated that he did not know of any other reason to be cold sensitive.  The Veteran denied ever having frostbite or any specific type of cold injury to his hands or feet.  He indicated that his extremities were just more sensitive to the cold.  The examiner reported that the Veteran had been a diabetic for at least ten years and had been on insulin for almost five years.  Based on this history and findings, the examiner assessed that the Veteran had no cold injury.  She indicated that as there was no cold injury there could not be any residuals due to a cold injury.  The examiner opined that the Veteran had cold sensitivity in his hands and feet and abnormal sensation and discomfort and pain due to his peripheral neuropathy.  As noted above, VA is precluded from compensating the Veteran for the very same symptoms as those that are part and parcel of an already service-connected disability.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; see Degmetich, 104 F. 3d 1328 (holding that the VA's and the Court's interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). 

The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain, 21 Vet. App. at 321 (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

While the Veteran may be competent to report having cold sensitivity, pain, and abnormal neurological sensations in his upper and lower extremities, he has not been shown to have the requisite training or credentials needed to ascertain whether the he currently has residuals of a cold injury as this is a medically complex question.  See Jandreau, 492 F. 3d 1372. 

The competent evidence, consisting of in-service and post-service treatment records along with the March 2009 VA examiner's opinion, following a thorough review of the claims folder and comprehensive examination of the Veteran, affirmatively shows that the Veteran does not currently have a residuals of cold injury.  As explained, there is no current, competent evidence of residuals of a cold injury.  As such, the criteria for service connection have not been met, and the Veteran's claim for service connection for residuals of cold injury must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for Eye Disability other than Diabetic Retinopathy
(to include Bell's Palsy of the Eyelid)

The Veteran maintains that his current Bell's Palsy of the right eyelid results from his service-connected diabetes.  In support of his claim, the Veteran has submitted several treatises demonstrating a relationship between Bell's Palsy and diabetes.  

After a review of all the evidence, the Board finds that the evidence is in equipoise as to whether the currently diagnosed Bell's Palsy of the right eyelid is etiologically related to the Veteran's service-connected DM.  A review of the treatment records reveals that in an April 2005 VA treatment record, the Veteran reported that he woke up the morning of February 18, 2005 and could not move the right side of his face.  He went to see physicians at the Knoxville Community Hospital and was discharged and came to VA where he was given a short course of steroids.  The Veteran indicated that about the time that it occurred, there was a loud pop that occurred in his jaw and shortly thereafter his Bell's Palsy occurred.  The Veteran reported problems with tearing and stated that he was not able to close his eye.  He also reported some mild problems with drooling and headaches.  

At the time of a March 2011 VA eye examination, the Veteran was diagnosed as having a droopy right eyelid secondary to Bell's Palsy and left eye refractive amblyopia.  The Veteran was also noted to have trace cataracts that were not limiting his vision.  

In an August 2011 VA neurology note, it was indicated that the Veteran had a history of Bell's Palsy with residual deficit.  It was indicated that approximately five to ten percent of cases of Bell's Palsy were associated with diabetes.  In an addendum report dated the same day, it was indicated that it should be further noted that as a residual of his Bell's Palsy, the Veteran had aberrant innervation of the salivary glands with tear duct causing increasing visual difficulties.  He was noted to have blindness in the left eye with now magnified consequences.  

In August 2012, the Veteran was afforded a VA examination to assist in determining the etiology of his Bell's Palsy.  Following examination, the examiner rendered a diagnosis of Bell's Palsy.  The examiner noted that a review of the records revealed that, in a February 18, 2005 nurse's note, it was indicated that the Veteran requested to have a private prescription filled at the VAMC.  The Veteran reported that he had been diagnosed with Bell's Palsy and had been given prescriptions of Valtrex and prednisone.  The examiner also referenced the April 2005 and August 2011 treatment records noted above.  

The VA examiner in August 2012 opined that the Veteran's Bell's Palsy and its residuals were more likely than not due to facial trauma as noted in the Veteran's records "The patient stated that about the time it occurred, there was a loud pop that occurred in is jaw, and then shortly thereafter, the Bell's Palsy occurred," or in combination with viral or inflammatory processes as described below-the condition was not likely due to or a result of DM.  The VA examiner then referenced a study from the Mayo Clinic, where it was noted that although the exact reason that Bell's Palsy occurred wasn't clear, it was often linked to exposure to a viral infection.  The examiner then referenced a number of viruses.  

The VA examiner in August 2012 also referenced a medical article in WebMD, which stated that the cause of Bell's Palsy was not clear.  Most cases were thought to be caused by the herpes virus that caused cold sores.  The examiner also made reference to medical literature in UpToDate which noted that the histopathology of the facial nerve in patients with Bell's Palsy was consistent with an inflammatory and possibly infectious cause, and the appearance was similar to that in herpes zoster infection, further supporting an infectious hypothesis.  The VA examiner further noted that UpToDate also indicated that alternate postulated mechanisms of Bell's Palsy included a genetic predisposition in some cases and ischemia of the facial nerve.  The examiner also noted that UpToDate further indicated that diabetes was present in 5 to 10 percent of the patients.  

The Veteran was afforded a VA eye examination in October 2012.  The examiner rendered diagnoses of mild nonproliferative diabetic retinopathy, refractive amblyopia of the left eye, and Bell's Palsy with aberrant regeneration on the right.  The Veteran was also noted to have preoperative cataracts in both eyes.  The examiner indicated that the Veteran had very mild nonproliferative diabetic retinopathy in both eyes and had refractive amblyopia in the left eye since childhood.  A history of Bell's Palsy with aberrant regeneration was also noted.  

Resolving reassemble doubt in favor of the Veteran, the Board finds that the Veteran's Bell's Palsy is caused by his service-connected DM.  As noted above, the Veteran has a current disability.  Based upon the above, the Veteran has satisfied the three elements necessary for a grant of service connection, Bell's Palsy, the current disability; a service-connected disability, DM; and nexus evidence showing a relationship between the service-connected DM and the Bell's Palsy.

With regard to the medical nexus, the Board notes that the August 2012 VA examiner found that the Bell's Palsy and its residuals was more likely than not due to facial trauma and was not likely due to or a result of DM.  The examiner cited to several medical treatises to support his opinion that the Veteran's Bell's Palsy was related to factors other than his service-connected DM.  However, the Board notes that the medical articles cited to by the examiner have indicated that the exact cause of Bell's Palsy is unknown.  Moreover, the articles cited to by the VA examiner indicate that 5-10 percent of the individuals who develop Bell's Palsy have DM.  The Veteran also submitted articles demonstrating a relationship between Bell's Palsy and DM.  In addition, the August 2011 VA neurologist noted that approximately five to ten percent of cases of Bell's Palsy were associated with diabetes.  As the exact cause of Bell's Palsy is unknown and as there have been medical articles referenced by both the Veteran and the VA examiner showing a relationship between Bell's Palsy and DM, with the August 2011 VA neurologist specifically indicating that Bell's palsy is demonstrated in five to ten percent of the people with DM, the Board finds that the medical evidence is in equipoise as to whether the Veteran's Bell's Palsy is caused by his service-connected DM.  Resolving reasonable doubt in favor of the Veteran, service connection for Bell's Palsy of the right eyelid and its residuals as secondary to service-connected DM is warranted.

VA regulations provide that refractive error of the eyes are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Amblyopia is an error of refraction.  The October 2012 VA examiner indicated that the Veteran had had refractive amblyopia in the left eye since childhood.  VA's General Counsel has interpreted, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  VAOPGCPREC 82-90; 38 C.F.R. §§ 3.303(c), 3.306.  The Veteran does not allege nor does the evidence of record show any increase in visual loss in the right eye during the Veteran's period of service.  The Veteran was noted to have 20/200 uncorrected vision at the time of his entrance into service and at separation.  There is no indication that the Veteran sustained any trauma or other type of eye injury during service.  As such, service connection for amblyopia could not be granted on the basis of aggravation.  

As to the cataracts that have been found on recent examinations, there were no findings of cataracts in service or in close proximity to service nor has the Veteran indicated that that his cataracts developed as a result of service or as a result of any service-connected disability.  There has also been no medical evidence received linking any current cataracts to the Veteran's period of service or to any service-connected disability.  Given the foregoing, service connection is not warranted for cataracts.  

Higher Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012). 

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).


Initial Rating for DM

The Veteran maintains that the symptomatology associated with his DM warrants an evaluation in excess of 20 percent and that he  currently meets all the criteria for necessary for a 40 percent disability evaluation.  

The Veteran's DM has been rated as 20 percent disabling under DC 7913.  See 38 C.F.R. § 4.119.  A 20 percent evaluation is warranted for DM requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is warranted for DM 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 evaluated separately.  DM 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, warrants a 100 percent evaluation.  Id.

Complications of DM are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating.  Noncompensable complications are considered part of the diabetic process under DC 7913.  Note 1 following 38 C.F.R. § 4.119 (2012).

Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities.  61 Fed. Reg. 20,440, 20,446 (May 7, 1996)(defining "regulation of activities," as used by VA in Diagnostic Code 7913).  Medical evidence is required to show that occupational and recreational activities have been restricted.  Camacho v. Nicholson, 21 Vet. App. 360 (2007).

"Successive" rating criteria, such as Diagnostic Code 7913 for DM, is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  For example, the diagnostic code for diabetes mellitus (DC 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth.  Camacho, 21 Vet. App. at 366.

The Veteran maintains that the symptomatology associated with his DM warrants a higher disability evaluation.  

At the time of a December 2005 VA examination, the Veteran reported that he felt clammy and weak and had a hard time keeping going.  He noted having gained 20 pounds in the past year due to a change in activity.  He tried to follow a low carb diet and exercise two times per day.  The Veteran stated that he just did not feel like doing things.  

At the time of a December 2006 outpatient visit, the Veteran was noted to be on insulin and was being referred to dietary for a restricted diabetic diet.  The Veteran was encouraged to exercise regularly as tolerated.  

At the time of a March 2010 VA diabetes examination, the Veteran was noted to have episodes of hypoglycemic reactions or ketoacidosis; however, none required hospitalization.  He was also noted to be seen by a diabetic care provider monthly or less often.  The Veteran was required to follow a restricted diet.  He was also noted to be restricted in his ability to perform strenuous activities.  Regulated or restricted activities were described as multiple daily shots, difficulty handling things, and a special diet.  He was also noted to be on insulin.  The examiner rendered a diagnosis of DM, worsening, with increased doses of insulin needed.  The examiner stated that the Veteran's DM had been poorly controlled.  

At the time of a March 2011 VA general medical examination, the Veteran was again noted to be taking insulin.  The course since onset had become progressively worse.  

At the time of a June 2011 VA outpatient visit, the Veteran was noted to have no restrictions related to exercise.  In July 2011, the Veteran reported that he was going to participate in some regular routine activities.  The examiner indicated that the Veteran needed to participate in regular exercise to help maintain and normalize his blood sugar levels.  

At the time of a December 2012 VA examination, the Veteran was noted to be taking more than one insulin shot per day.  The examiner indicated that the Veteran specifically did not require regulation of activities as part of his medical management for DM.  He was noted to visit his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions.  There had been no hospitalizations for episodes of hypoglycemia or ketoacidosis in the past 12 months.  There was no progressive loss of strength to DM.  

Only two of the three requirements have been met at some point during the period on appeal.  The Veteran has been noted to be on insulin and to be on a restricted diet.  The third requirement of regulation of activities has not been met at any point during the period on appeal.  Regulation of activities, as noted by the criteria for a 100 percent evaluation, refers to avoidance of strenuous occupational and recreational activities.  Here, the Veteran has been encouraged to exercise regularly.  While the Board notes that the March 2010 VA examiner indicated that the Veteran was restricted in his ability to perform strenuous activities, the regulated activities which the examiner referenced referred to taking multiple daily shots, having difficulty handling things, and being on a special diet.  The Veteran has not been advised to avoid strenuous occupational and recreational activities.  Moreover, at the time of the most recent VA examination, the Veteran was noted to have no regulation of activities as part of his management of DM.  Thus, as the weight of the evidence shows require regulation of activities, as defined for VA rating purposes, is not required, a 40 percent disability evaluation is not warranted.  38 C.F.R. §§ 4.3, 4.7.

As for the criteria for a 60 percent evaluation, while the Veteran has been reported to have episodes of ketoacidosis and hypoglycemia, these episodes have not been shown to have require two hospitalizations per year or twice a month visits to a diabetic care provider. 

Initial Rating for PTSD

The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). 

A 100 percent evaluation is assigned for 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.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating.  The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002).

The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2012).  GAF scores from 71 through 80 is indicative that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more that slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work).  Scores ranging from 61 through 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.  Scores ranging from 51 through 60 reflect 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 through 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).  A GAF score of from 31 through 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

The Veteran contends that the symptomatology associated with his PTSD demonstrates that an evaluation in excess of 50 percent is warranted.  

The Board finds that the Veteran's PTSD has not been characterized 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: obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships during any period. 

VA treatment records associated with the Veteran's claim reveal that at the time of a June 2004 outpatient visit he was diagnosed as having depression and PTSD, with a GAF score of 55 being assigned.  The Veteran denied any recent suicidal/homicidal ideations.  A GAF score of 55 was again assigned at the time of an outpatient visit later that month.  During a VA outpatient patient visit in the latter part of June, mental status examination revealed appearance, speech, thought process, thought content, insight, judgment, fund of knowledge, and mood and affect all to be within normal limits.  The examiner assigned a GAF score of 60.  GAF scores of 60 along with the same mental status results were reported at the time of October 2004, May 2005, and June 2005 visits.  In July 2005, the same mental status results were reported, with a GAF score of 55 being assigned.  

At the time of a December 2005 VA examination, the Veteran was noted to be working 40 hours per week.  The Veteran reported going to church on a regular basis with his wife.  He also noted having one friend he would go fishing with.  He further reported playing in a band with some friends.  The Veteran indicated that he felt depressed about not being able to perform his past job anymore and stated that at his low points he would become very frustrated, angry and irritable, and at such times he often felt hopeless.  The Veteran's depressive thoughts had to do at times with suicidal thoughts, especially of a passive nature.  The Veteran reported having several crying spells per week.  He indicated that he was sleeping pretty well at night.  The Veteran reported having frequent low moods.  He noted having poor stress tolerance at work.  He also claimed problems with memory and concentration, sometimes losing track of what he was doing at work.  

Mental status examination in December 2005 revealed his manner was dysphoric.  The Veteran became tearful during the interview.  His speech was logical and there were no hallucinations, delusions, or formal thought disorder.  No obsessions or compulsions were elicited.  There were no flight of ideas or loosening of associations.  He was oriented times three with adequate memory and concentration.  It was noted that the Veteran complained of losing track of his thoughts and having reduced problem solving ability, which the examiner stated appeared to be a symptom of depression.  The examiner noted that while the Veteran was claiming that his PTSD symptoms were worse, it did not appear that there had been a change.  The examiner rendered Axis I diagnoses of PTSD and depression and assigned a GAF score of 58.  

The Veteran was afforded another VA examination in August 2006.  The Veteran indicated that things were going fairly well.  The Veteran did not appear to be having difficulties at work from a confrontational standpoint.  He stated that he continued to sleep poorly.  He continued to live with his family and work forty hours per week.  He lived with his wife, his mother-in-law, his two sons, and a daughter.  The Veteran did some yard work and a little gardening.  He helped his wife with cooking and doing the dishes.  The Veteran indicated that he continued to be uncomfortable around crowds and at daily gatherings.  He continued to going fishing with a friend and was still interested in country music, although he did not get together and play.  The Veteran stated that he generally slept poorly and woke up a lot.  The examiner noted that the Veteran appeared to have poor stress tolerance.  The Veteran stated that he was still jumpy and easily startled and that he would lock himself up thoroughly at night and was concerned about his security.  He indicated that he was irritable and sometimes spoke to his wife curtly.  The Veteran reported having thoughts of suicide when he was at work and having a lot of pain and hopelessness.  He stated that he rarely had crying spells.  The Veteran stated he had problems with memory, but not extreme in nature.  

Mental status examination in August 2006 revealed the Veteran appeared tense and physically uncomfortable in the interview situation.  His speech was logical and related, with no indication of hallucinations, delusions, or formal thought disorder.  There were no obsessions or compulsions.  He was oriented times three with adequate memory and concentration for purposes of the interview.  He had multi-factorial sleep difficulties.  The examiner stated that the Veteran did not appear to show a great deal of change with regard to his PTSD and depression, as contrasted to what he reported eight months ago.  The notes from his treating VA psychiatrist were confirmatory of this.  The examiner rendered Axis I diagnoses of PTSD and major depressive disorder and assigned a GAF score of 58.  

At the time of a March 2007 visit, the Veteran reported that his son had recently died.  He also noted that they had moved to a double wide trailer.  These events had made things very difficult.  The Veteran reported living with his two adult children and wife.  Mental status examination revealed appearance, speech, thought process, associations, thought content, insight and judgment, and fund of knowledge, were all within normal limits.  The Veteran's mood and affect were depressed but brightened with conversation.  He was alert, oriented, and cooperative.  The examiner rendered an Axis I diagnoses of chronic PTSD and recurrent major depressive disorder and assigned a GAF score of 50.  

At the time of a January 2008 VA outpatient visit, the Veteran reported that he had been switched from the laundry room to the file room as his physical problems prevented him from working in the laundry room.  The Veteran stated that it was easier now as he could be more to himself.  He did not do the activities that he enjoyed in the past, including hunting and fishing.  He noted that his son had passed away.  The Veteran stated that his mood was fair and that he slept better in the daytime than at night.  He denied any suicidal or homicidal thoughts.  Mental status examination revealed appearance, speech, thought process, associations, thought content, insight and judgment, and fund of knowledge were all within normal limits.  The Veteran's mood and affect were depressed; however, he was alert, oriented, and cooperative.  The examiner rendered Axis I diagnoses of chronic PTSD and recurrent major depressive disorder and assigned a GAF score of 50. 

At the time of an April 2008 visit, mental status examination revealed appearance, speech, thought process, associations, thought content, insight and judgment, and fund of knowledge were all within normal limits.  The Veteran's mood and affect were anxious and stressed; however, he was alert, oriented, and cooperative.  The examiner rendered Axis I diagnoses of chronic PTSD and recurrent major depressive disorder and assigned a GAF score of 55-60.

At the time of a March 2010 VA examination, the Veteran reported having moderate to severe depression over the Winter.  He indicated that he was hopeful that things would begin to improve when he was able to get outdoors.  He noted having had the loss of a son, his mother-in-law, and his job over the past four years.  He had been dealing with grief related to all of these.  The Veteran stated that pain was a major factor in his depression.  The Veteran was noted to have retired in July 2009.  He retired as the neck and shoulder pain he was experiencing had caused him to retire.  He reported that he and his wife had been married for 42 years and had a wonderful relationship.  He noted seeing his parents once a week.  The Veteran reported attending church twice a week.  He stated that he would ride along with his friend in his truck on occasion.  The Veteran enjoyed gardening and mowing.  He also enjoyed fishing and hunting.  He loved being outside and doing outdoor activities.  He played bass guitar when family members got together.  There was no history of suicide attempts or violence/assaultiveness.  The Veteran reported having been through a tough winter and sleeping 12 to 14 hours per day.  He indicated that he would get confrontational with his wife and daughter at times.  He reported improvement with being able to get outside.  He had a group of friends that he enjoyed playing cards with and fishing and hunting with.  

Mental status examination in March 2010 revealed he was neat, clean, and casually dressed.  Psychomotor activity and speech were unremarkable.  He was friendly, cooperative, attentive and guarded with the interviewer.  His affect was blunted and his mood was anxious and depressed.  His attention was intact and he was oriented times three.  Thought process and content were unremarkable.  There were no delusions and the Veteran had average intelligence.  He also understood that he had a problem and understood the outcome of his behavior.  The Veteran reported sleeping a lot over the Winter and when he was depressed.  There was no inappropriate behavior and the Veteran interpreted proverbs properly.  There were no obsessive/ritualistic behaviors.  There were no suicidal or homicidal thoughts.  Impulse control was good with no episodes of violence.  He could maintain minimum hygiene and had no problems with activities of dally living.  Remote memory was normal while recent and immediate memory were mildly impaired.  The Veteran stated that he needed to be reminded to do things.  

In March 2010, the Veteran reported having had ongoing mild to moderate PTSD symptoms since the last review.  The Veteran was noted to have retired in 2009 due to physical problems.  The examiner rendered Axis I diagnoses of PTSD and major depressive disorder.  The examiner assigned a GAF score of 65.  The examiner noted that the Veteran reported a decrease in PTSD symptoms since retirement.  Sleep and mood were noted to have improved.  The examiner indicated that the Veteran's nightmares were the primary cause of his impairment.  The examiner stated that the Veteran's PTSD did not result in deficiencies in the areas of judgment, thinking, family relations, work mood, or school.  

At the time of an August 2011 visit, the Veteran reported that he had stopped his anti-depressants as they were interfering with his sex life.  He noticed a change in his mood and restarted the medications at the urging his family.  Mental status examination revealed he was alert and attentive and oriented times three.  He was appropriately dressed and clean.  Speech had a normal rate and rhythm and language was intact.  His mood and affect were better since he restarted his medication.  Thought process was normal and coherent and thought content was not unusual.  There were no suicide or violent ideations.  Insight and judgment were good and memory was intact.  The examiner rendered Axis I diagnoses of chronic PTSD and recurrent major depression and assigned a GAF score of 60.  

At the time of an October 2012 VA examination, the examiner rendered Axis I diagnoses of chronic PTSD and major depressive disorder.  The examiner noted that the Veteran reported having had increased symptoms in the past five months, especially irritability, hypersomnia, and decreased motivation.  He attributed this to extreme heat.  The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  As to the Veteran's symptoms, the examiner checked the boxes indicating that the Veteran had a depressed mood, panic attacks that occurred weekly or less often, mild memory loss, and disturbances of motivation and mood.  He did not check the numerous other boxes which were available.  The examiner assigned a GAF score of 61.  

After a review of all the evidence, lay and medical, the Board finds that the criteria for a disability evaluation in excess of 50 percent were not met or nearly approximated throughout the appeal period.  The Board finds that the Veteran's PTSD symptoms were not shown to be more than moderate in degree and only moderately impacted social and occupational functioning.  The Veteran's PTSD symptoms and the severity of his symptoms have not more nearly approximated the criteria for a 70 percent disability (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) at any time.  38 C.F.R. §§ 4.3, 4.7.

The criteria in excess of 50 percent are not met.  While the Veteran has reported on occasion thinking of suicide, there have been no findings of suicidal plans.  There have also been no findings or assertions of homicidal plans or intentions.  While the Veteran reported checking the locks and worrying about his security, there were no obsessional rituals found which interfered with routine activities.  Speech was not found to be intermittently illogical, obscure, or irrelevant at any time during this period.  Although the Veteran was noted to become stressed, these were limited to when he was in stressful situations or when around crowds.  While depression has been noted throughout the appeal period, it was not near-continuous.  While the Veteran indicated that he was easily irritated and impatient, there were no periods of violence.  He was also found to be alert and oriented to time, place, and person during this time frame.  There were also no findings of neglect of personal appearance and hygiene.  

As to relationships, while the Veteran reported that he preferred to be alone, he was still married and stated that he had a good relationship with his children.  Furthermore, the overwhelming majority of GAF scores assigned during this time period are indicative of 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).  

The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous.  Id. at 442.

With this in mind, the evidence shows that the Veteran's overall PTSD picture, to include occupational and social impairment, was adequately contemplated by the existing 50 percent rating.  The Veteran does suffer from sleep problems, but this is specifically listed under the criteria for a 30 percent rating, a lower rating than the 50 percent rating.  Disturbance of motivation and mood, and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent rating criteria.  The same is true with the Veteran's depression and anxiety, which are both symptoms contemplated under the 30 percent PTSD disability rating.  A 50 percent PTSD disability rating also considers "disturbances of motivation and mood" which would include the Veteran's reported depression and anxiety symptoms.  Despite the Veteran's contention that his PTSD symptoms warranted an evaluation in excess of 50 percent, the Board finds that the evidence of record does not support this contention. 

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a higher initial rating in excess of 50 percent and the appeal for a higher rating must be denied.  As the preponderance of the evidence is against the appeal for this period, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Initial Rating for Peripheral Neuropathy

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R. § 4.123. 

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating.  Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.  38 C.F.R. § 4.124. 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor.  38 C.F.R. § 4.124a. 

Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve.  The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.

Under Diagnostic Code 8512, a 20 percent evaluation is assigned for mild incomplete paralysis of the lower radicular group of nerves of the major and minor arm.  A 40 percent evaluation is assigned for moderate incomplete paralysis of the lower radicular group of nerves of the major arm, while a 30 percent is assigned for the minor arm.  A 50 percent evaluation is assigned for severe incomplete paralysis of the lower radicular group of nerves of the major arm, while a 40 percent evaluation is assigned for the minor arm.  A 70 percent evaluation is assigned for complete paralysis of the lower radicular group of nerves of the major arm, while a 60 percent evaluation is warranted for the minor arm; all intrinsic muscles of hand, and some or all flexors of the wrist and fingers paralyzed (substantial loss of use of hand).  See 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2012).  This is not to be combined with lost motion above the shoulder level.  See 38 C.F.R. § 4.124a, Diagnostic Code 8519, Note (2012).

The Veteran contends that the symptomatology associated with his bilateral upper and lower extremity peripheral neuropathy more closely resembles that of moderately severe impairment.  

At the time of a September 2005 VA neurological consult, the Veteran was diagnosed as having peripheral neuropathy.  He was found to have good power in his right arm and diminished grip strength in both hands.  

At the time of a December 2005 VA examination, the Veteran was found to have decreased feeling in his feet.  Cold weather made his hands and feet colder.  Sensation was decreased in the lower extremity enough that he was not sure what he stepped on.  The Veteran was noted to be right hand dominant.  Neurologic examination revealed the Veteran was able to rock on his heels and raise up on his toes and take several steps forward with moderate difficulty.  He was also able to tandem walk with mild loss of balance.  The Veteran had a diminished ability to feel 5.7/10 gm nylon monofilament tester on all points on the plantar and dorsal surfaces to the ankles, bilaterally.  Vibratory sensation was intact and deep tendon reflexes were 1+ and symmetric with plantars downgoing.  The examiner rendered a diagnosis of moderately severe peripheral neuropathy.  

At the time of a January 2008 VA examination, the Veteran reported having constant discomfort in his hands with a dull ache that he rated as 3/10 with a burning sensation and numbness and tingling in the wrist to the tips of all fingers.  With extended use of the hands, the pain did not increase.  The Veteran reported that cold affected the sensation of the hands.  The Veteran denied having heat or redness to the upper or lower extremities.  The Veteran indicated that the condition affected all activities that required fine manipulation with the hands.  The Veteran stated that he had increasing difficulty with grasping and manipulating.  He noted that he had to use shoes at all times as the feet had become very sensitive.  He stated that extended walking also caused pain.  He also noted having altered sensations in the feet, either exaggerated or absent.  The Veteran indicated that he could walk more than one mile and go up and down 1-2 flights of stairs without difficulty.  Upper extremity function was normal except for that noted above.  The Veteran indicated that he was able to perform instrumental and basic ADLs without assistance.  

Physical examination in January 2008 revealed that the extremities were properly aligned and grossly symmetric.  Muscle mass, tone, and strength were symmetric with 5/5 strength in the upper and lower extremities, without fatiguing or lack of endurance after continuous resistance greater than gravity, without incoordination, and without clubbing, cyanosis, or pedal edema.  Joint examination was within normal limits with functional active range of motion of all joints without pain.  

As to the feet at the January 2008 VA examination, the Veteran reported decreased sensation from the mid-calf to the top of the toes with monofilament tester, bilaterally.  As to the hands, they were able to function as an integral unit for grasping.  The Veteran was able to fully oppose the thumb to the palmar surface at the base of the little finger, bilaterally.  He was also able to oppose the thumb to the tip of each finger, bilaterally.  Grip strength was firm and symmetric without fatiguing or lack of endurance after continuous resistance greater than gravity, without incoordination, clubbing, or cyanosis.  The Veteran reported decreased sensation for the wrist to the tips of his toes with monofilament tester, bilaterally.  

At the January 2008 VA examination, Romberg was negative and the Veteran was able to rock up on his heels and raise up on his toes and take several steps forward without difficulty.  He was also able to tandem walk without loss of balance.  Sensory was grossly intact and symmetric and deep tendon reflexes were 2+ and symmetric with plantars downgoing.  The examiner rendered diagnoses of bilateral peripheral neuropathy of the lower extremities and hands with no additional functional impairment due to fatigue, weakness, lack of endurance, or incoordination. 

At the time of a March 2010 VA examination, the Veteran reported having numbness, paresthesias, dysesthesia, and pain in the hands and feet.  The Veteran stated that he had a tingling needlelike sensation.  The Veteran reported that he was noticing increased numbness and becoming intolerant to cold with change in color and extreme pain.  He stated that the condition had become increasingly worse.  The Veteran reported having difficulty handling things because of pain in his fingers.  Numb and painful feet made it difficult for him to feel and to walk.  The Veteran stated that this had become progressively worse.  

Examination in March 2010 revealed normal motor function for the hands and feet.  Sensory function for the upper extremities was normal as to vibration, pain, light touch, and position sense.  As to the lower extremities, it was absent as to vibration, pain, light touch, and decreased as to position sense.  Reflex examination was 2+, bilaterally, for the bicep, triceps, and brachioradialis.  As to knee and ankle reflexes, they were 1+.  Left and right plantar were abnormal.  There was no muscle atrophy, abnormal muscle tone, tremors, tics or other movements.  There was no function of any other joint affected by the nerve disorder.  Gait and balance were normal.  The examiner rendered a diagnosis of chronic moderate diabetic peripheral neuropathy.  

In March 2010, the Veteran indicated that neuritis and neuralgia were present but paralysis was absent.  He stated that the neuropathy had a mild effect on chores, shopping, exercise, and sports, and no effect on recreation, travel, feeding, bathing, dressing, toileting, or grooming.

The Veteran was afforded an additional VA examination in December 2012.  The Veteran was noted to be right hand dominant.  The Veteran was noted to not have constant or intermittent pain in his right or left upper extremity and to have no paraesthesia, dysesthesia, or numbness in either upper extremity.  There was also no constant pain in either lower extremity, with dull intermittent moderate pain being reported in the lower extremities.  The Veteran was also noted to have moderate paraesthesia/dysesthesia and moderate numbness in both lower extremities.  

The Veteran in December 2012 was found to have 5/5 strength in all upper and lower extremities.  2+ (normal) reflexes were reported for the biceps, triceps, brachioradialis, knees, and ankles.  Light touch/monofilament testing was normal for the shoulder, forearm, hand/fingers and knee/thigh.  It was absent in the foot and ankle.  Vibratory sensation was normal in the upper extremities and decreased in the right and left lower extremities.  Cold sensation was normal for the right and left upper extremities and decreased for the right and left lower extremities.  There was no muscle atrophy and no trophic changes.  The examiner indicated that the Veteran did not have upper extremity peripheral neuropathy.  The examiner indicated that the Veteran did have lower extremity peripheral neuropathy.  Normal findings were reported for the sciatic and femoral nerve.  The Veteran was noted to have a positive Romberg with a mildly broad based gait.  He was able to take a few steps with toe, heel, and tandem walking.  The examiner stated that the Veteran's peripheral neuropathy did not affect his ability to work.  

The examiner in December 2012 indicated that physical examination was notable for decreased sensation of light touch with monofilament, temperature, and vibration below the knees.  There was absent sensation to vibration, light touch, and monofilament in the feet.  There was normal strength in the lower extremities.  Romberg test was positive with mild broad based gait.  Examination of the upper extremities was noted for normal sense to light touch, temperature, vibration and monofilament, bilaterally, with normal strength and no atrophy.  

In a January 2013 addendum report, the VA examiner indicated that the Veteran had mild incomplete paralysis of the left and right sciatic nerve and normal findings for the femoral nerve.  

Rating Upper Extremities

With regard to the upper extremities, the evidence demonstrates symptomatology more closely approximating that for mild impairment throughout the course of the appeal warranting a 20 percent rating.  The Veteran has been shown to have normal strength and reflexes for his upper extremities throughout the entire appeal period.  There have also been no findings of atrophy.  While the March 2010 VA examiner made a general diagnosis of chronic moderate diabetic peripheral neuropathy for both the upper and lower extremities, the testing results were more indicative of mild impairment as evidenced by normal motor function of the hands, normal sensory function for the upper extremities with regard to vibration, pain, light touch, and position sense, 2+ reflex examination for the bicep, triceps, and brachioradialis, and no muscle atrophy, abnormal muscle tone, or tremors, tics or other movements.  Furthermore, the December 2012 VA examiner indicated that there had been no demonstration of peripheral neuropathy of the upper extremities.  A rating in excess of 20 percent for bilateral upper extremity peripheral neuropathy have not been met or approximated for any period.  38 C.F.R. §§ 4.3, 4.7.

Rating Lower Extremities

As to the lower extremities, the Board finds that the symptomatology more closely approximates that for moderate impairment, warranting a 20 percent disability from the initial grant of service connection, July 11, 2005, to March 24, 2010.  Although the Board notes that the Veteran was diagnosed as having moderately severe peripheral neuropathy at the time of the December 2005 VA examination, the objective medical findings are more akin to those necessary for moderate impairment.  Neurologic examination revealed the Veteran was able to rock on his heels and raise up on his toes and take several steps forward with moderate difficulty and was able to tandem walk with mild loss of balance.  While the Veteran had a diminished ability to feel on monofilament tester for all points on the plantar and dorsal surfaces to the ankles, bilaterally; vibratory sensation was intact and deep tendon reflexes were 1+ and symmetric with plantars downgoing at that time.  The Veteran has also not been found to have more than moderate neurological impairment for his lower extremities at the time of any other VA examination for the time period in question.  Resolving reasonable doubt in favor of the Veteran, the criteria for moderate impairment, warranting a 20 percent evaluation, has been met from July 11, 2005, to March 24, 2010.  

An initial disability evaluation in excess of 20 percent for bilateral diabetic peripheral neuropathy of the lower extremities was not met for any period.  The Veteran has not been found to have more than moderate neurological impairment for his lower extremities at the time of any other VA examination other than the December 2005 VA examination, with the most recent VA examiner describing the Veteran's peripheral neuropathy of the lower extremities as mild in nature.  For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a higher initial rating in excess of 20 percent and must be denied for any period.  As the preponderance of the evidence is against an evaluation in excess of 20 percent for this period, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

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.  In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  

In this case, the schedular rating criteria contemplate the impairments and symptoms associated with the Veteran's PTSD.  The symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria, DC 9411, specifically provides for disability ratings based on a combination of history and clinical findings.  In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested difficulty sleeping, depression, anxiety, being startled easily, unprovoked irritability, obsessional rituals, and difficulty with maintaining work and social relationships.  These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria.  Mauerhan at 443.  The levels of occupational and social impairment are also explicitly part of the schedular rating criteria.  In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning.  The Board notes that the Veteran is being granted a TDIU in this decision based upon his overall service-connected disabilities, which includes his PTSD.  There have been no findings by any VA examiner that his PTSD alone causes total occupational impairment.  

As it relates to the initial rating for DM appeal, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule.  The Veteran's DM corresponds to the schedular criteria for the assigned disability evaluations.  The schedular rating criteria (Diagnostic Code 7913) specifically rate on a requirement for insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet, as well as other symptoms and criteria the Veteran does not meet, including regulation of activities.  For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's DM and no referral for an extraschedular rating is required.

Regarding the rating for the Veteran's lower extremity and upper extremity peripheral neuropathy, the ratings assigned under Diagnostic Codes 8520 and 8512, respectively, are based on the average impairment of earning capacity resulting from peripheral neuropathy of the bilateral lower extremities.  The schedular rating criteria in this case contemplate symptomatology found within the record of evidence, specifically difficulties caused by abnormal nerve functioning between the spine and the lower extremities and the upper extremities, including pain, numbness, loss of reflexes, etc.  38 C.F.R. § 4.124a.

In the absence of exceptional factors associated with these disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


Entitlement to TDIU

Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent.  38 C.F.R. § 4.16(a).  In calculating whether a veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability.  The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation.  38 C.F.R. § 4.16(a).

In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2012).

In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment.  In a pertinent precedent decision, VA General Counsel interpreted that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria for determining unemployability include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91. 

The Court has also held that a veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating.  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability.  Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment.  Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. at 363. 

Furthermore, marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).

Service connection is currently in effect for PTSD, rated as 50 percent disabling; DM, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; peripheral neuropathy of the right upper extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; and hearing loss, rated as noncompensable.  Based upon this Board decision, service connection has now been granted for psoriasis; psoriatic arthritis of the hands, neck, knees, hips, and shoulders; lumbar stenosis with radiculopathy; and Bell's Palsy of the right eyelid.  Prior to the grant of the those disabilities in the current decision, the Veteran had a combined disability evaluation of 90 percent.  Based upon the above assigned disability evaluations, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16(a).

The Veteran contends that he cannot obtaining or retain substantially gainful employment.  He maintains that his service-connected disabilities are sufficient to prevent him from obtaining or retaining substantially gainful employment. 

After reviewing all the evidence, the Board finds equipoise as to whether the Veteran's service-connected disabilities prevent him from obtaining or retaining substantially gainful employment.  The Veteran's work history consists of manual labor, to include duties as a laundry technician and work as a clerk filing paperwork.  As noted above, the Veteran's disability evaluation was 90 percent prior to the grant of service connection in this decision for multiple disabilities.  The most recent grants involve multiple joints, including the back, which certainly will have an impact on the Veteran's ability to perform clerical or manual labor, which have served as the basis for the Veteran's past employment.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities would render him essentially unemployable.  The Veteran's occupational history includes performing manual labor.  Given the Veteran's physical limitations and his occupational history of predominantly manual labor, the Board finds that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining or retaining gainful employment.  For these reasons and bases, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted.  38 C.F.R. §§ 3.340, 3.341, 4.15, and 4.16.

CUE

A decision of a duly constituted rating agency or other agency of original jurisdiction will be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification of such.  See 38 C.F.R. § 3.104(a).  Previous determinations, which are final and binding, will be accepted as correct in the absence of CUE.  Where evidence establishes such error, the prior decision will be reversed or amended.  See 38 C.F.R. § 3.105(a).  A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105.  See 38 C.F.R. § 3.104(a). 

A claim of CUE is a collateral attack on a final decision by a VA Regional Office or the Board.  Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999).  Pursuant to 38 U.S.C. § 5109A(a), an RO decision is subject to revision on the grounds of CUE.  A decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). 

CUE is a very specific and rare kind of "error."  Specifically, it is a kind of error, of fact or of law, that when called to the attention of later reviewers compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. 

Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). 

The Court propounded a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell, 3 Vet. App. at 313-14). 

The mere misinterpretation of facts does not constitute CUE.  See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).  The error must be one, which would have manifestly changed the outcome at the time that it was made and must be based on the record and the law that existed at the time of the prior adjudication.  Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Any claim of CUE must be pled with specificity.  See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002).  This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated.  In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence.  See Crippen v. Brown, 9 Vet. App. 412 (1996). 

Broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious.  See Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. at 313-14.  Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one.  See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen, 9 Vet. App. at 424; Caffrey, supra. 

Under the applicable criteria, generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a).  If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation from service; otherwise, the effective date is the date of the claim.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. §§ 3.1(p), 3.400(b)(2)(i). 

In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above.  38 C.F.R. § 3.816 (2005-2012) sets forth the effective date rules required by orders of the United States district court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991) (Nehmer Stipulation).  For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide disease, here diabetes mellitus, Type 2.  Thus, the Veteran is considered a Nehmer class member.  See 38 C.F.R. § 3.816(b)(1)(2) (2012). 

If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award, if the class member's claim for disability compensation for the covered herbicide disease was either pending before the VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, will be the later of the date such claim was received by VA or the date the disability arose, unless the claim was received within a year following separation from service.  A claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  See 38 C.F.R. § 3.816(c)(2).  Diabetes mellitus was added to the list of diseases subject to service connection on a presumptive basis, effective July 9, 2001.  See 66 Fed. Reg. 23,166 (May 8, 2001).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) later held that the effective date of the regulation should be May 8, 2001, pursuant to 38 U.S.C.A. § 1116(c)(2).  See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002). If, as the case here, the above requirements are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). 

In this case, the evidence shows that, on February 24, 2004, the RO received the Veteran's completed VA Form 21-526, formal claim, seeking service connection for, in pertinet part, DM and hypertension.  

In an August 2006 rating decision, the RO granted service connection for DM and assigned a 20 percent disability evaluation with an effective date of February 24, 2003.  The RO also granted service connection for hypertension and assigned a 10 percent disability evaluation with an effective date of February 24, 2004, the date of receipt of the initial claim.  Based on 38 U.S.C.A. § 5110(a), therefore, the RO granted the earliest effective date for a grant of service connection for hypertension that the law allows.  38 C.F.R. § 3.400. 

However, in various statements, the Veteran and his attorney assert that an earlier effective date should be assigned for the grant of service connection for hypertension as the Veteran was granted service connection for DM effective February 24, 2003, and the Veteran was placed on blood pressure medication on October 17, 2003, which was subsequent to the date of the grant of service connection for DM.  

In order to have the provisions of 38 C.F.R. § 3.114 to apply and allow for retroactive payment one year prior to the receipt of the Veteran's original claim, the evidence must show that the claimant met all eligibility criteria for the liberalizing benefit on the effective date of the liberalizing law/regulation and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.  Here, the evidence is undebatable that the Veteran was not diagnosed as having hypertension at the time of the change in the law.  Inasmuch as the Veteran was not diagnosed with hypertension at the time of the change in the regulation and since there was no pending claim for service connection for hypertension prior to February 24, 2004, there is no legal basis for granting service connection for hypertension prior to February 24, 2004.  Rather, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than that assigned.  See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. §§ 3.114, 3.400(b)(2). 

Here, the Veteran and his attorney have specifically pled that the August 2004 rating decision contains CUE and assert that an earlier effective date should be assigned for the grant of service connection for hypertension under the provisions of 38 C.F.R. § 3.114(a)(3) pertaining to liberalizing law or regulation changes.  However, as discussed above, the law and the evidence of record are undebatable in this instance and the Veteran's CUE claim must be denied.  Since the Veteran was not diagnosed with hypertension prior to the change in the regulation and since there was no pending claim for service connection for hypertension prior to February 24, 2004, there is no legal basis for granting an effective date for service connection for hypertension prior to February 24, 2004. 


ORDER

Service connection for psoriasis is granted. 

Service connection for psoriatic arthritis of multiple joints is granted. 

Service connection for lumbar stenosis with radiculopathy is granted.  

Service connection for ischemic heart disease is denied. 

Service connection for cold injury residuals is denied. 

Service connection for Bell's Palsy of the right eyelid and its resulting residuals is granted.

An initial disability evaluation in excess of 20 percent for DM is denied. 

An initial disability evaluation in excess of 50 percent for PTSD is denied. 

An initial disability evaluation for diabetic neuropathy of the right lower extremity of 20 percent for period prior to March 24, 2010 is granted; an evaluation in excess of 20 percent for any period is denied. 

An initial disability evaluation for diabetic neuropathy of the left lower extremity of 20 percent for period prior to March 24, 2010 is granted; an evaluation in excess of 20 percent for any period is denied. 

An initial disability evaluation in excess of 20 percent for diabetic neuropathy of the right upper extremity is denied 

An initial disability evaluation in excess of 20 percent for diabetic neuropathy of the left upper extremity is denied. 

A TDIU is granted. 

The claim of CUE in the August 2004 rating decision that granted service connection for hypertension and assigned a 10 percent disability evaluation with an effective date of February 24, 2004 is denied.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs