Citation Nr: 1332411 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-13 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left foot. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to April 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and in Atlanta, Georgia. Jurisdiction of these matters is with the RO in Atlanta, Georgia. In an August 2007 rating decision, the RO in St. Petersburg, Florida, granted service connection and assigned an initial 30 percent rating for PTSD. At that time, the RO also continued the 20 percent rating for diabetes mellitus and the 10 percent rating for degenerative joint disease of the left foot and denied a claim for a TDIU. The Veteran appealed the ratings assigned for these service-connected disabilities and for a TDIU. In addition, he requested separate disability ratings for peripheral neuropathy, secondary to his service-connected diabetes mellitus. In a June 2010 rating decision, the RO in Atlanta, granted an earlier effective date for the grant of service connection for PTSD and assigned an initial higher 70 percent rating. In addition, the RO granted the claim for a TDIU and granted service connection and separate compensable ratings for peripheral neuropathy of the right and left lower extremities. As this is a full grant of the benefits sought as to these matters, they are moot, and no longer before the Board. A June 2010 supplemental statement of the case continued the ratings assigned for diabetes mellitus and degenerative joint disease of the left foot. The Veteran requested and was scheduled for a Travel Board hearing in October 2011. However, in October 2011 correspondence, the Veteran requested that his hearing before a member of the Board of Veterans' Appeals be canceled and his record forwarded to the Board for a decision to be made based on the evidence of record. Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(d) (2012). In August 2012, the Board remanded the Veteran's claims. In a May 2013 rating decision, the Appeals Management Center (AMC) awarded the Veteran separate disability ratings of 20 percent for peripheral neuropathy of the right and left upper extremities as associated with diabetes mellitus effective August 23, 2012. Additionally, the AMC granted the Veteran 20 percent disability ratings for peripheral neuropathy of the right and left lower extremities as associated with diabetes effective August 23, 2012. Moreover, the Veteran was granted service connection for bilateral diabetic retinopathy and assigned a separate, noncompensable (zero percent) evaluation effective August 25, 2012. The Board notes that the Veteran has not filed a notice of disagreement as to the assigned disability ratings and effective dates. As such, these issues will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. The Board notes, however, that the appeal period for which the Veteran may file a notice of disagreement as to the assigned disability ratings and effective dates has not yet expired. Indeed, the Veteran has one year from the date the rating decision was issued to file a notice of disagreement as to the assigned disability ratings and effective dates. The AMC also continued the previous denial of the Veteran's PTSD, diabetes, and left foot claims in a May 2013 supplemental statement of the case (SSOC). Additionally, the AMC denied entitlement to disability ratings greater than 20 percent for the peripheral neuropathy of the right and left lower extremities as associated with the diabetes mellitus. The Board notes, however, that these claims had not been in appellate status. As discussed above, service connection was granted for these issues in the above-referenced June 2010 rating decision which was a full grant of benefits. Indeed, the AMC indicated that these were "non-appeal" issues and the May 2013 decision provided the Veteran with notice of his appeal rights in the event that he disagreed with the ratings or effective dates. Accordingly, the Board will proceed with adjudication of the Veteran's claims for increased ratings for PTSD, diabetes mellitus, and degenerative joint disease of the left foot. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left foot is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by deficiencies in most of the areas such as work, family relations, judgment, thinking, or mood; but total occupational and social impairment has not been demonstrated. 2. The competent and probative evidence of record indicates that treatment of the Veteran's diabetes mellitus, type II, requires the use of insulin and diet restriction, but not restriction of activities. 3. Erectile dysfunction, which is a complication of the Veteran's diabetes, is not manifested by penile deformity with loss or erectile power; it is thus a noncompensable complication and considered part of the diabetic process. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to increased disability ratings for his service-connected PTSD and diabetes. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in August 2012, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) or AMC to obtain outstanding VA and private treatment records as well as afford the Veteran a VA examination for his diabetes. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the AMC obtained outstanding VA treatment records and attempted to obtain outstanding private treatment records. Further, the Veteran was afforded a VA examination for his diabetes, and a report of the examination was associated with his claims folder. The Veteran's PTSD and diabetes claims were readjudicated via the May 2013 SSOC. Accordingly, the Board's remand instructions have been substantially complied with regard to the Veteran's PTSD and diabetes claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the disability rating and effective-date elements of the claim, by letters mailed in April 2006 and January 2007, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. The pertinent evidence of record includes the Veteran's statements, service treatment records, Social Security Administration (SSA) records, and VA treatment records. The Veteran was afforded VA examinations for his PTSD in August 2007 and April 2010 and for his diabetes in April 2007 and August 2012. The examination reports reflect that the examiners interviewed and examined the Veteran, considered the applicable disability's history, documented his current medical conditions, and provided sufficient information to rate the Veteran's PTSD and diabetes under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that with regard to the claim for an initial higher rating for PTSD, in a November 2007 VA psychiatry record, the Veteran indicated that he continued to see a counselor at the "Vet Center" in Watkinsville. Pursuant to the August 2012 Board remand, the AMC contacted the Veteran via a December 2012 letter and requested that he return a signed and dated VA Form 21-242 Authorization and Consent to Release Information in order to obtain these records. However, the Veteran initially did not provide the address for the Vet Center in response to the December 2012 letter. As such, the AMC again contacted the Veteran via a March 2013 letter requesting that he provide the address for the Vet Center. Although the Veteran thereafter returned a signed and dated form, he provided the address for the VA outpatient clinic in Lawrenceville, Georgia where he receives treatment for his PTSD. As indicated above, these records have been obtained and associated with his claims folder. Therefore, the Board finds that VA adjudication of the appeal may go forward. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Board's decision to not remand the appeal for a second time to obtain these records is supported by the fact that it appears that the AMC made a sufficient attempt to locate all outstanding treatment records. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. He cancelled his request for a hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision as to the issues of entitlement to increased disability ratings for PTSD and diabetes. Higher evaluation for PTSD Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2013). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2013). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2013). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. The Veteran is currently rated at 70 percent under Diagnostic Code 9411 for his PTSD. Under the general rating formula for mental disorders, a 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that in accordance with the general rating formula, a maximum 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the rating formula lists specific symptoms that are indicative of total impairment, the Court has held that the symptoms listed in the rating formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability, VA is required to consider all symptoms that affect her social and occupational functioning, and not limit consideration to those symptoms listed in the rating formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the Veteran demonstrates the symptoms listed in the rating formula. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the GAF score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 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 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). While the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. The Veteran was afforded a VA examination for his PTSD in August 2007. He reported intrusive recollections of his combat in Vietnam, sleep problems, irritability, hypervigilance, and inability to adjust to society or control his drinking. He also reported that he quit working at a construction company in April 2006 due to his diabetes and arthritis. The relationship with his co-workers and supervisor was "fair." He also noted that the relationship with his parents was "good," and although he maintained contact with his sisters, he did not associate with his brother. He was divorced and did not currently have a significant other or children. Although he reported that he did not have a social life, he stated that he has a few friends who pay him a visit a month apart or so. Upon examination, the VA examiner initially reported that the Veteran was a reliable historian. The examiner further noted that the Veteran appeared dysphoric, restless, and inattentive at times. His orientation was within normal limits. His affect and mood were abnormal with findings of anxiety. Moreover, his speech and communication were within normal limits, although concentration was poor. There was no evidence of panic attacks, suspiciousness, or delusional history. His judgment, abstract thinking, and memory were normal. There was no evidence of suicidal or homicidal ideation. The examiner diagnosed the Veteran with PTSD and noted that the Veteran did not have difficulty performing activities of daily living. He further reported that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally he is functioning satisfactorily with routine behavior, self-care and normal conversation. The Board notes that VA mental health evaluations dated May 2006 through May 2013 document the Veteran's treatment for his PTSD. The Veteran reported decreased sleep, appetite, and energy level as well as anhedonia, depressed mood, auditory hallucinations from Vietnam, nightmares, night sweats, flashbacks, intrusive memories of combat, survivor's guilt, avoidance of discussion of combat, hypervigilance, and increased startle response, anger, anxiety, and isolation. The evaluations indicate that the Veteran was cooperative and that thought process, orientation, and memory were normal. However, multiple evaluations indicate his appearance as unkempt/unusual or disheveled. See, e.g., a VA treatment record dated September 2009. Moreover, May, June, and July 2006 evaluations noted his speech as delayed and slowed. He denied suicidal or homicidal ideation as well as panic attacks. His mood was depressed and affect was impaired. He also reported in the evaluations that he lived by himself. His leisure activities included fishing and watching television. The Veteran was afforded a VA examination in April 2010. He continued to report intrusive memories of his combat in Vietnam as well as irritability, hypervigilance, crying spells, and sleep disturbance. He also reported that he had not worked in five years due to his medical problems. He stated that he spent his time listening to the radio as he had nowhere to go, but sometimes walked outside for exercise. He had a friend who visited him about once a week, and he spent time on most weekends with a neighbor. He remained in touch with his sister by telephone and would sometimes see her on holidays. He did not attend church, but was a member of the American Legion. He reported no trouble keeping up with his hygiene, feeding self, or toileting. He was able to do most housework, errands, and cooking. Upon examination, the VA examiner reported that the Veteran was alert and on time for the appointment. He was reasonably clean and fully oriented. He was able to register three words immediately, and was able to recall two of them after about five minutes, and was able to recall the third when given a cue. He was able to spell the word "world" forward with some effort, but was unable to spell it backwards. He also had difficulty spelling his own name backwards. The Veteran's speech was generally normal in rate, rhythm, volume, and tone, but he would sometime increase the volume when irritated or to make a point, and also had a tendency to mumble answers at times. Moreover, his thought was linear and focused predominantly on pain and other medical issues. He denied hallucinations as well as suicidal and homicidal ideation. No delusions were elicited. His mood was somewhat depressed, and his affect was irritable initially, but somewhat constricted toward the latter part of the interview. His insight and judgment were fairly good. The examiner diagnosed the Veteran with chronic PTSD, and noted that the Veteran was able to take care of his basic and functional activities of daily living. She further reported that there was reduced reliability and productivity due to mental disorder signs and symptoms, and that there was no evidence that suggested the Veteran lacked capacity to manage his funds independently. Based on the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 70 percent for his PTSD. In this regard, the Board finds that, for the entire appeal period, such disability is manifested by occupational and social impairment with deficiencies in most areas as a result of depressed mood; sleep disturbances; nightmares; neglect of personal appearance and hygiene; impaired impulse control; difficulty adapting to stressful circumstances; impaired speech; feelings of isolation; and hypervigilance without more severe manifestations that more nearly approximate total occupational and social impairment. Indeed, the Board finds that this symptomatology is contemplated in the Veteran's current 70 percent rating. As indicated previously, a 100 percent rating is warranted where there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that the evidence of record indicates that the Veteran's PTSD is arguably manifested by intermittent inability to perform activities of daily living based on multiple treatment records noting a disheveled or unkempt appearance. Moreover, he has reported auditory hallucinations from his combat in Vietnam. However, the Board finds that the Veteran's PTSD does not result in total occupational and social impairment. Specifically, the competent and probative evidence of record does not indicate he has symptoms such as, or similar in severity to, gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives or own name. Indeed, the competent and probative evidence indicates that the Veteran's thought processes and memory are essentially normal and he has been oriented on examination. Moreover, there is no indication that the Veteran is in danger of hurting himself or others. The Board further notes that the evidence of record reflects that the Veteran has symptomatology including nightmares, mood swings, intrusive thoughts, feelings of isolation, and hypervigilance. See Mauerhan, supra. These symptoms are fully contemplated in the assigned evaluation. Moreover, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, while the disorder has been assessed as severe, no examiner or clinician has indicated that the Veteran is totally disabled from an occupational and social standpoint as a result thereof. The evidence shows that while the Veteran has a tendency to isolate, he does maintain relationships with some family members, a friend and a neighbor. The Board also observes that the Veteran has been assigned GAF scores between 65 and 46, which indicate mild to serious impairment with a GAF of 55 at his most recent VA examination. There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter, supra. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Given the actual psychiatric symptoms shown in this case, the Board finds that level of overall psychiatric impairment shown to be consistent with a 70 percent rating. Since the Veteran has been diagnosed as having psychiatric conditions in addition to the service-connected PTSD and the symptoms attributable to other psychiatric conditions have not been disassociated from his service-connected disorder, the Board has considered all psychiatric symptoms in reaching the above conclusion. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the competent and probative evidence of record does not show that the Veteran meets the criteria for a total rating for any period of time that is covered by this appeal. There are no medical findings and no other evidence which would allow for the assignment of a disability ratings greater than 70 percent during the period of time under consideration. Specifically, as discussed above, the evidence of record, to include the August 2007 and April 2010 VA examination reports as well as VA treatment records, indicate that the Veteran's PTSD symptoms have remained relatively consistent throughout the period and do not show that there is total occupational and social impairment. As such, there is no basis for awarding the Veteran a disability rating other than the assigned 70 percent for PTSD for any time from February 6, 2006 to the present. Higher evaluation for diabetes mellitus Based on the evidence presented, the Board finds that an evaluation in excess of the currently assigned 20 percent for diabetes mellitus, type II, is not warranted. In this regard, the Board notes that to warrant a higher evaluation the evidence must show diabetes mellitus type II requiring insulin, a restricted diet and regulation of activities. The Court has held that, to warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive-i.e., there must be insulin dependence and restricted diet and regulation of activities. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. Here, at most, the evidence of record shows that the Veteran's diabetes mellitus requires medication with insulin and a restricted diet. The medical record is devoid of any showing of a requirement of regulation of activities by his medical providers. In fact, the Veteran was encouraged to exercise 30 minutes every day (brisk walking, treadmill, bike). See VA treatment record dated in August 2012; see also VA treatment record dated in February 2013. VA treatment records show that the Veteran is followed for diabetes mellitus type II. They further show that the Veteran was prescribed medication, including insulin, and advised to regulate his diet for control of his condition. The Veteran underwent a VA examination in April 2007. He did not report a history of diabetic ketoacidosis or problems with hypoglycemia. He noted progressive weight loss and loss of strength and tingling in his feet and hands. He used medication for treatment. He also stated that the diabetes did not affect the skin, arteries, kidneys, or the heart. He had intermittent claudication after walking 100 yards on level ground. He also reported erectile dysfunction. Physical examination revealed blood pressure readings of 124/78, 126/80, and 126/78. Examination of the Veteran's eyes, skin, lungs, heart, abdomen, extremities, genitals, and peripheral pulses were normal. Peripheral nerve examination was also within normal limits. The diagnosis was type II diabetes mellitus with subjective weight loss, weakness and tingling and objectively on medication. The examiner opined that the Veteran's erectile dysfunction and neurological problems, diagnosed as neuropathy, were complications of the diabetes. The Veteran was afforded a subsequent VA examination in August 2012. The examiner noted that the Veteran's diabetes was managed by restricted diet, prescribed oral hypoglycemic agent, and prescribed insulin more than one injection per day. The examiner specifically noted that the Veteran did not require regulation of activities as part of his medical management of the diabetes. The Veteran reported that he visits his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. He did not have episodes of ketoacidosis or hypoglycemia which required hospitalization over the past year. He did not have progressive unintentional weight loss attributable to the diabetes or evidence of scars. Complications of diabetes included peripheral neuropathy and retinopathy. Blood pressure was 134/78. Lungs were clear to auscultation. Cardiac examination indicated regular rate and rhythm. Examination of extremities revealed no cyanosis, clubbing, or edema. To the extent that the Veteran argues that his activities are in fact restricted, there is no documented medical restriction on his activities. Indeed, the Veteran reported at the April 2010 VA examination for his PTSD and during a VA medical appointment in July 2012 that he would walk for exercise. Moreover, VA medical records, including March 2011, August 2012 and February 2013 VA treatment record documents treatment for the Veteran's diabetes which included exercise every day. The evidence of record is thus absent for restriction of activity due to service-connected diabetes mellitus. All of the criteria for the assignment of a 40 percent disability rating are not met; the higher rating may not be awarded. Accordingly, the claim must be denied. As to the complications related to diabetes, the Board notes that the April 2007 VA examiner opined that the Veteran's erectile dysfunction is related to the diabetes. Although the August 2012 VA examiner did not indicate such, as these are the only two medical opinions of record, the Board will resolve the benefit of the doubt in the Veteran's favor and find that his erectile dysfunction is a complication of the diabetes. However, the Veteran does not meet the criteria for a compensable, 20 percent rating for erectile dysfunction, which is awarded for penis deformity with loss of erectile power. 38 C.F.R. § 4.115 (b), Diagnostic Code 7522. Crucially, the competent and probative evidence of record, to include the April 2007 VA examination, is absent any indication of penis deformity. Accordingly this complication is properly rated as part of the diabetic process, and not separately. See Note 1 at Diagnostic Code 7913. The Board also notes that the August 2012 VA examiner did not find that a cardiac condition, hypertension, peripheral vascular disease, stroke, skin condition, or eye condition other than diabetic retinopathy were at least as likely as not related to the Veteran's diabetes. Moreover, she did not find that a cardiac condition, hypertension, renal disease, peripheral vascular disease, or eye condition other than diabetic retinopathy were at least as likely as not aggravated by the diabetes. There is no competent and probative evidence to the contrary. The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including numbness and tingling in his extremities), has presented no probative clinical evidence that he currently has a cardiac condition, hypertension, renal disease, peripheral vascular disease, or eye condition other than diabetic retinopathy as complications from his diabetes. The Board finds that the Veteran as a lay person is not competent to opine that these conditions are complications of his diabetes. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contentions with regard to a cardiac condition, hypertension, renal disease, peripheral vascular disease, or eye condition other than diabetic retinopathy as complications of his diabetes mellitus to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2013) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board has placed greater probative weight on the objective evidence of record which does not show a cardiac condition, hypertension, renal disease, peripheral vascular disease, or eye condition other than diabetic retinopathy as complications of diabetes. The Board has considered whether a staged rating is warranted, but finds that the Veteran's diabetes has remained essentially the same during the appeal period and at no time met the criteria for a higher evaluation. As such, a uniform rating is warranted and there is no basis for a staged rating. See Hart, supra. Extraschedular consideration In evaluating the severity of his service-connected PTSD and diabetes mellitus, the Board also has considered whether referral for the disabilities at issue on an extra-schedular basis is warranted. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. As was discussed above, the criteria specifically provide for evaluation of the disabilities based upon the Veteran's PTSD and diabetes with associated symptomatology, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disabilities. See 38 C.F.R. § 4.1. Rice consideration Finally, the Board has considered whether a remand for consideration of total disability benefits based on individual unemployability (TDIU) is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as discussed above, in a June 2010 rating decision, the RO in Atlanta granted the Veteran's claim for TDIU. As this was a full grant of the benefits sought as to this matter, it is moot, and no longer before the Board. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 70 percent for PTSD is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. REMAND Higher evaluation for left foot disability The Board remanded this claim in August 2012 for the Veteran to be provided a VA examination due to a reported worsening of his left foot symptoms. The Board specifically directed the VA examiner to include in their report active and passive range of motion in degrees, including the specific limitation of motion due to pain, including at what point the pain begins. The examiner was to then set forth the extent of any functional loss present for the service-connected left foot disability due to weakened movement, excess fatigability, incoordination, or pain on use. The degree of functional impairment or interference with daily activities, if any, was to also be described in adequate detail. Any additional impairment on use or in connection with any flare-up was to have been described in terms of the degree of additional range-of-motion loss. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim. In conjunction with the prior remand, the Veteran was afforded a VA examination for his degenerative joint disease of the left foot in September 2012. The examiner reported that the Veteran had pain to palpation of the first and second tarsometatarsal joint, inferior aspect of the third, fourth, and fifth metatarsal head, sinus tarsi, peroneal tendons, and posterior aspect of the subtalar joint. He also had pain with range of motion of the left subtalar joint and dorsiflexion of the ankle joint as well as positive fatigability following eight repetitions. Furthermore, the Veteran reported using a brace and cane for ambulation. An X-ray report of the left foot dated August 2012 revealed impressions of moderate hypertrophic degenerative disease of the tibiotalar joint, posterior subtalar joint, and midfoot; mild degenerative joint disease of the first metatarsophalangeal joint; and moderate plantar and retrocalcaneal enthesophytes. The examiner further noted that the Veteran is unable to ambulate or stand for prolonged distances, requires the use of a shower chair, and utilizes infrared heat and whirlpool baths to treat his symptoms. The examiner also opined that the Veteran's left foot disability is moderate in nature. Crucially, however, the VA examiner did not comply with all of the Board's directions in the August 2012 remand. In particular, she did not include in her report active and passive range of motion in degrees, including the specific limitation of motion due to pain, including at what point the pain begins. The examiner also did not set forth the extent of any functional loss present for the service-connected left foot disability due to weakened movement, excess fatigability, incoordination, or pain on use. Moreover, there was no indication as to whether the Veteran reported flare-ups associated with his left foot disability and if he evidenced flare-ups, what was the degree of additional range-of-motion loss. In light of the foregoing, the Board finds that remand for an additional VA examination is warranted for compliance with the August 2012 remand. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected degenerative joint disease of the left foot. The entire claims file must be provided to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests should be accomplished and all clinical findings reported in detail. The current severity of the service-connected symptoms and any disability/symptomatology affecting the left foot, which is related to the service-connected disability, should be noted and fully described. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive range of motion in degrees, including the specific limitation of motion due to pain, including at what point the pain begins. The examiner should then set forth the extent of any functional loss present for the service-connected left foot disability due to weakened movement, excess fatigability, incoordination, or pain on use. The examiner should also describe the level of pain experienced by the Veteran and state whether any pain claimed by him is supported by adequate pathology and is evidenced by his visible behavior. The degree of functional impairment or interference with daily activities, if any, should be described in adequate detail. Any additional impairment on use or in connection with any flare-up should be described in terms of the degree of additional range-of-motion loss. The conclusions should reflect review of the claims folder, and the discussion of pertinent evidence. 2. If the examination report does not provide the information requested above, return the report as insufficient. After ensuring the development above has been conducted in accordance with the above instructions and after conducting any additional development that is deemed warranted, readjudicate the Veteran's claim. If the benefit on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period to respond before the case should be afforded to the Veteran and his representative before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs