Citation Nr: 1605231 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 06-35 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for diabetes mellitus, type II, for the period prior to May 25, 2005, and in excess of 20 percent thereafter. 2. Entitlement to an initial compensable evaluation for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, for the period prior to June 9, 2007, and in excess of 10 percent thereafter. 3. Entitlement to an initial compensable evaluation for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, for the period prior to June 9, 2007, and in excess of 10 percent thereafter. 4. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period of September 19, 2003 through January 9, 2008, in excess of 70 percent for the period from January 10, 2008 through September 30, 2010, and in excess of 50 percent for the period beginning October 1, 2010. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from June 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and November 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the above issues. This case was before the Board in September 2010 and October 2012, when the diabetes mellitus, associated peripheral neuropathy, and TDIU claims were remanded for further development at that time. Those claims have been returned to the Board for further appellate review at this time. At this time, the Board will assume jurisdiction over an initial increased evaluation claim for the Veteran's PTSD, and that claim and the TDIU claim will be addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period prior to May 25, 2005, the evidence of record demonstrates that the Veteran's diabetes mellitus was not treated with insulin or an oral hypoglycemic agent, but rather solely by a restricted diet only; an oral hypoglycemic agent (metformin) was prescribed beginning on May 25, 2005. 2. For the period beginning May 25, 2005, the evidence of record does not demonstrate that the Veteran's activities were ever regulated throughout the appeal period, despite being prescribed with both a restricted diet and insulin beginning in October 2012. 3. The first evidence of record respecting the Veteran's bilateral lower extremity peripheral neuropathy as a result of his diabetes mellitus was shown in a May 25, 2005 VA treatment record. 4. Throughout the period beginning May 25, 2005, the Veteran's bilateral lower extremity peripheral neuropathy is found to be more closely approximate to mild incomplete paralysis of the Veteran's bilateral sciatic nerves. CONCLUSIONS OF LAW 1. The criteria establishing an evaluation in excess of 10 percent prior to May 25, 2005, and in excess of 20 percent thereafter, for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2015). 2. The criteria establishing a 10 percent evaluation, but no higher, for right lower extremity peripheral neuropathy associated with diabetes mellitus beginning May 25, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.7, 4.124(a), Diagnostic Codes 8520, 8620 (2015). 3. The criteria establishing a 10 percent evaluation, but no higher, for left lower extremity peripheral neuropathy associated with diabetes mellitus, beginning May 25, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.7, 4.124(a), Diagnostic Codes 8520, 8620 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claims for diabetes mellitus, type II, and associated bilateral lower extremity peripheral neuropathy arise from appeal of the assignment of initial evaluations of those disabilities following grants of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA as to those issues. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. Finally, the Board acknowledges that the claims herein decided were the subject of an October 2012 Board remand, which instructed that VA treatment records and a VA examination of those disabilities be obtained. The Board notes that VA treatment records through July 2015 have been obtained and are associated with the claims file; the Veteran likewise underwent a VA examination of his diabetes mellitus and associated complications, including bilateral lower extremity peripheral neuropathy, in January 2013. The Veteran has not identified any outstanding private treatment records pertaining to his diabetes and associated disabilities. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2015); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2015); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2015); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2015). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has been evaluated for his diabetes mellitus, type II, as 10 percent disabling from November 29, 2004-the date he filed his claim for service connection for that disability-to May 24, 2005, and as 20 percent disabling for the period beginning May 25, 2005. The Veteran's diabetes mellitus, type II, has been evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7913, throughout the appeal period. Under Diagnostic Code 7913, a 10 percent evaluation is warranted when diabetes mellitus, type II, is manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2015). The criteria for a rating in excess of 20 percent for diabetes mellitus necessitate a requirement of "regulation of activities." This is so for the 40, 60, and 100 percent evaluations. With respect to a 40 percent rating, the United States Court of Appeals for Veterans Claims (Court) has held that all the criteria must be met given the clearly conjunctive structure of the language used in Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of Diagnostic Code 7913 for diabetes mellitus with the non-successive Diagnostic Code 7903 for hypothyroidism). Additionally, "regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Medical evidence is required to support the "regulation of activities" criterion. See Camacho, 21 Vet. App. at 364; 38 C.F.R. § 4.119, Diagnostic Code 7913. Moreover, a note following Diagnostic Code 7913 states that compensable complications of diabetes are to be separately evaluated unless those complications are part of the criteria used to support a 100 percent evaluation for diabetes mellitus; noncompensable complications, however, are considered part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In compliance with that provision, the Veteran has been separately evaluated for his bilateral lower extremity peripheral neuropathy associated with his diabetes mellitus, as complications of that disability, since June 9, 2007. The Veteran has been separately evaluated as 10 percent disabling for right and left lower extremity peripheral neuropathy, respectively, since that date. Those separate evaluations have been assigned under 38 C.F.R. § 4.124(a), Diagnostic Code 8520-8560. Under Diagnostic Code 8520 and 8620, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis/neuritis. Moderate incomplete paralysis/neuritis warrants a rating of 20 percent. Moderately severe incomplete paralysis/neuritis warrants a 40 percent evaluation. Severe incomplete paralysis/neuritis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis/neuritis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124(a), Diagnostic Codes 8520, 8620 (2015). Turning to the evidence of record, the Veteran filed his claim for service connection for diabetes mellitus, type II, on November 29, 2004. In November 2004, the Veteran's VA treatment records demonstrate that he was seen for a nutrition consult, wherein the Veteran was diagnosed with diabetes mellitus, type II, and given a restricted diet in order to treat that disability. The Veteran submitted an April 2005 VA physician's statement which indicated that he was diagnosed with diabetes mellitus, type II, and that his diabetes was manageable by restricted diet only. The Veteran was not shown to have any complications at that time; that letter specifically noted that a VA treatment record in February 2005 noted that he had no neuropathy at that time. The Veteran had a VA yearly physical examination on May 25, 2005, at which time it was noted that the Veteran was prescribed metformin for his diabetes. That treatment record also indicated that there was "? neuropathy" and a two week history of intermittent numbness and tingling of the right lateral leg; sensory examination at that time was normal. In a September 2005, the Veteran underwent an electromyelogram (EMG) study for those complaints; the Veteran's right lower extremity was tested, resulting in an essentially negative EMG study, without evidence of lumbar radiculopathy or neuropathy. The Veteran underwent a VA examination of his diabetes mellitus in September 2005. At that time, the examiner noted that the Veteran had been prescribed metformin to control his diabetes on May 25, 2005; the Veteran reported using that medication as prescribed without any side effects. The examiner noted that the Veteran had never been prescribed insulin, and he denied a history of ketoacidosis or hospitalization for diabetes. The Veteran reported a couple of episodes of hypoglycemia when he began taking metformin, although he denied any current hypoglycemic reactions. He also reported that he has been instructed on a diabetic diet and is stable at 224 pounds. He further denied any restriction of activities on account of diabetes and that he visited his diabetic doctor about every 6 months. The examiner also noted that the Veteran had a diabetic eye examination in September 2005, and there was no evidence of diabetic retinopathy at that time. The examiner noted that the Veteran's glaucoma pre-dated his diabetes, and that currently, the Veteran denied any hypertension or arteriosclerotic complications. The Veteran, however, did report neurological symptoms of both feet at that time, though he denied any bladder or bowel dysfunction. The examiner additionally noted that the Veteran's erectile dysfunction predated his diabetes diagnosis. The Veteran denied foot ulcerations or infections. Respecting neurological symptomatology, the Veteran reported infrequent episodes of numbness, burning, and tingling of both feet; he denied any bilateral feet condition, however, and also denied having any medications for his reported neurological symptoms. The examiner noted the previous report and the EMG, as noted above. The Veteran denied any paresthesias, dysesthesias, or any other sensory abnormalities at that time. He also denied that there were any other adverse effects of his reported neurological symptoms on his daily activities; he did, however, report that prolonged standing or walking worsened his bilateral foot condition. On examination, the Veteran's neurological examination revealed sensory function that was intact to light touch and monofilament testing, with very mild sensory deficit noted on monofilament testing on both the plantar aspects of his bilateral feet. The Veteran's noted laboratory data from the Veteran's VA treatment records from November 2004 and May 2005. It was noted that the Veteran was placed on metformin for control of his diabetes by his primary practitioner on May 25, 2005. He further indicated that the was evidence of subjective symptoms and objective findings consistent with mild peripheral neuropathy affecting his bilateral feet; the examiner found that bilateral peripheral neuropathy was likely due to the Veteran's diabetes mellitus, despite the negative EMG study in September 2005, as that diagnostic study was noted to be insufficient to evaluate early diabetic neuropathy in the medical literature. The examiner additionally noted that there was no eye or erectile dysfunction disorders which were complications of his diabetes; the examiner concluded that the Veteran had no other known complications at that time. The Veteran underwent another VA examination of his diabetes mellitus on June 9, 2007. The examiner noted that the Veteran was diagnosed with diabetes mellitus in November 2004, and that his current symptoms included tingling and pain of his peripheral nerves. The Veteran denied ketoacidosis, hospitalization, or hypoglycemic reactions. He was current prescribed a diabetic diet and was taking 850 mg of metformin twice daily; he denied any side effects and noted that his treatment regimen helped to control his glucose. The Veteran weighed 235 pounds, representing a 10 pound weight gain over the last year. He denied any restriction of activities as a result of his diabetes, and reported seeing his diabetic care provider every six months or more. The Veteran reported that he has experienced increased lethargy and weakness over the last 5-6 years; he urinated 8-10 times a day and twice at night; he described hesitancy, weak stream, and incontinence issues every other day, but denied dysuria or use of absorbent materials. He also denied that his urinary symptoms affected his daily activities to a severe extent. The Veteran also denied anorexia, reporting a 10 pound weight gain. Respecting his neuropathy, the Veteran noted that he had tingling and burning of his feet beginning approximately 2-3 years prior, which had increased in severity since that time. He reported that it was moderate in severity and denied any aggravating or alleviating factors. He treated his neurological symptoms with gabapentin and did not have any side effects. He currently had paresthesias; he stated that his neurological symptoms interfered with his daily activities to a moderate extent. On examination, the Veteran appeared well-nourished and well-developed, with a normal posture and gait. There were no diffuse dermatologic abnormalities. There was no adenopathy, tenderness or suppuration or edema. He denied eye complaints and there was no diabetic retinopathy. He did not have any hearing problem at that time. The Veteran's neck, chest, cardiovascular, breast, abdomen and genitourinary/rectal examinations were normal. The Veteran's neurological examination noted decreased sensation of the bilateral lower extremities to light touch and nonresponse to monofilament examination of his bilateral feet. The Veteran was diagnosed with diabetes mellitus, erectile dysfunction, peripheral neuropathy, and hypertension. Respecting the Veteran's erectile dysfunction, the examiner noted that the diagnosis predated the Veteran's diabetes and therefore was not caused by or related to diabetes. The Veteran's hypertension and peripheral neuropathy, however, were noted as being complications of his diabetes at that time. A review of the Veteran's VA treatment records reveals many of the same complaints and findings as reported above. In a September 2006 EMG, the results again showed no electrodiagnostic evidence of peripheral neuropathy, although the examiner could not rule out small fiber neuropathy at that time. In November 2006, the Veteran's diabetes was not well controlled, although he was still only taking metformin orally to treat that disability, as well as having a restricted diet. There was no evidence of a prescription for insulin or a regulation of activities at that time. In a July 2007 VA treatment record, the Veteran had decreased sensation of his feet to touch, vibration and filament; he was diagnosed with diabetes mellitus, type II, at that time and noted that he was being treated with metformin, which he recently ran out of, at that time. In an August 2007 podiatry consult, the Veteran's feet had intact sensation to sharp, dull, and light touch. The Veteran was again seen for an annual physical in June 2008, at which time his diabetes and diabetic neuropathy remained the same as previously noted, although his compliance with medications to control both his diabetes and neuropathy were discussed with the Veteran at that time. The Veteran underwent another VA examination of his diabetes in October 2010, at which time it was noted that the Veteran saw his primary care physician and podiatrist, though not a diabetic specialist, every 4 to 6 months. The examiner noted that the Veteran took metformin and glyburide orally twice daily. The Veteran reported a hypoglycemic episode monthly, and no hospitalization. With particular examination of his peripheral neuropathy at that time, the Veteran reported having onset sensitivity to clothes touching his legs and his ankles tingling. He reported progressively worse symptoms without any current treatment. He further reported losing skin on the bottom of both feet, numbness and tingling of his calves, left ankle swelling, and drawing sensation of his bilateral feet. On examination, the Veteran weighed 223 pounds, and had a normal eye, cardiac, and skin examination. On neurological examination, the Veteran's upper and lower extremities were normal in temperature and color, without evidence of trophic changes and ulceration. His reflexes were normal, as was the sensory examination to vibration, pain/pinprick, position sense, and light touch; there was no dysesthesias and his detailed motor examination was normal, with normal muscle tone and without evidence of muscle atrophy. There was no gait abnormality, imbalance or tremor, evidence of fasciculations, or any joint function affected by his neurological disorder. The Veteran was diagnosed with diabetes mellitus, type II, and bilateral lower extremity peripheral neuropathy. The Veteran reported having difficulty doing a lot of walking and climbing, particularly stairs, and lifting due to pain in his legs and feet; he also had trouble riding in and getting out of a car due to his neurological condition. The VA examiner clarified the above neurological examination in a February 2012 addendum, using the Disability Benefits Questionnaire (DBQ) format. The examiner indicated that the October 2010 examination had been reviewed and stated that it should have read, "Bilateral lower extremity peripheral neuropathy with no objective evidence of peripheral neuropathy on today's exam." Using the DBQ template, the examiner noted that the Veteran's bilateral radial, median, ulnar, sciatic and femoral nerves were normal in October 2010. It further appears, in the Veteran's VA treatment records, that it was contemplated to begin the Veteran on insulin due to his poor control of diabetes with restricted diet and oral hypoglycemic agents only in November 2011. However, it was ultimately determined not to place the Veteran on insulin due to his alcohol use at that time, particularly his blackout-drinking episodes. Consequently, the Veteran was prescribed insulin for his diabetes in October 2012, which was continued through July 2015; throughout the balance of his VA treatment records from October 2012 through July 2015, the Veteran's diabetes was shown to be generally uncontrolled due to noncompliance with his medications-insulin, glyburide, and metformin-and his alcohol use. Those treatment records, however, do not indicate that the Veteran was ever told he had a restriction on his activities due to diabetes; there is no indication of a prescription or discussion with the Veteran regarding regulation of activities throughout the appeal period, beyond imploring him to have better compliance with his medications and to decrease or stop his alcohol intake. In a December 2012 statement, the Veteran indicated that he was diagnosed with type II diabetes and was taking insulin shots. Finally, the Veteran underwent a VA examination in January 2013. In that examination, the Veteran was noted to be diagnosed with diabetes mellitus, type II. He was also shown to be treated by a prescribed oral hypoglycemic agent and more than 1 insulin injection per day; the Veteran reported that he takes his medications and insulin "off and on." The Veteran was not shown to require regulation of activities at that time. The frequency of his diabetic care was less than 2 times per month. The Veteran had no hospitalizations for ketoacidosis or episodes of hypoglycemia. The Veteran did not have any progressive, unintentional weight loss or loss of strength. The Veteran was noted to have diabetic peripheral neuropathy as a complication of his diabetes, but no other complications. The examiner noted that the Veteran's most recent A1C testing was 11 percent, in October 2012. The examiner concluded that there was no diabetic retinopathy, as of examination in May 2012. Respecting his diabetic peripheral neuropathy, the Veteran reported that both have numbness and his feet tingle, left worse than right, and that they are as "cold as ice." He also reported some burning/tingling in his right hand more so than the left. The examiner noted that he was treated with gabapentin, which was effective and without any side effects. The examiner noted the September 2006 EMG results. The Veteran reported moderate constant pain in his left lower extremity only, no intermittent pain (usually dull) in any extremities, moderate paresthesias and/or dysesthesias in the right upper and left lower extremities only, and mild numbness in his bilateral lower extremities only. On examination, the Veteran's strength examination was normal bilaterally; so was his deep reflex examination, with exception of his bilateral ankles with was decreased. The Veteran showed decreased sensation in his bilateral feet/toes only in light touch/monofilament testing. He had normal position sense and cold sensation testing. The Veteran, however, had decreased vibration sense in his bilateral lower extremities. The Veteran was not shown to have any muscle atrophy or trophic changes. The examiner noted that the Veteran did not have any evidence of upper extremity diabetic peripheral neuropathy. However, the Veteran's bilateral lower extremity peripheral neuropathy was assessed as being mild incomplete paralysis of the sciatic nerves; his bilateral femoral nerves were normal. The examiner diagnosed the Veteran with diabetes mellitus with associated lower extremity peripheral neuropathy. While there was complaints of occasional paresthesias/dysesthesias of his bilateral upper extremities on examination, his bilateral upper extremity neurological examination was normal on examination at that time and therefore a more precise diagnosis could not be made, although the examiner noted that there has been not diagnosis of any upper extremity diabetic neuropathy in the VA treatment records and there may be other non-diabetic reasons for his claimed neurological symptoms of the upper extremities. Based on the foregoing evidence, the Board finds that the Veteran's evaluations for his diabetes mellitus and associated bilateral lower extremity peripheral neuropathy should remain unchanged, although the Board awards the 10 percent evaluations for the Veteran's bilateral peripheral neuropathy beginning May 25, 2005. The reasoning is as follows. Respecting the Veteran's diabetes mellitus prior to May 25, 2005, the Veteran's diabetes mellitus was treated with a restricted diet only, as noted in the April 2005 VA physician's letter. However, beginning May 25, 2005, the Veteran was prescribed metformin, an oral hypoglycemic agent, for his diabetes along with his restricted diet. Accordingly, that is the date on which a 20 percent evaluation for diabetes is warranted, and it has been properly assigned as of that date; prior to that date, the Veteran was not prescribed an oral hypoglycemic agent or insulin. For the period beginning May 25, 2005, the Board cannot award a higher evaluation for the Veteran's diabetes. Specifically, while the Board acknowledges that the Veteran has been on a restricted diet throughout the appeal period, he was not prescribed insulin to treat his diabetes until October 2012. Moreover, even after prescription of insulin, there is no evidence throughout the appeal period that the Veteran was told to regulate his activities as a result of his diabetes. That is to say that the Veteran was never told by any treatment provider to avoid strenuous occupational or recreational activities due to his diabetes at any time throughout the appeal period, but particularly after being prescribed insulin in October 2012. The Board notes that a higher evaluation than the currently assigned 20 percent requires prescription of a restricted diet, insulin, and regulation of activities. Moreover, the Board notes that the Veteran is never shown to have any hospitalizations as a result of hypoglycemic reactions or ketoacidosis throughout the appeal period, nor is there any evidence of progressive weight loss or strength. Thus, while the Veteran is shown to have a restricted diet and insulin beginning in October 2012, the Veteran is never shown to have a regulation of activities due to his diabetes, and therefore a higher evaluation than his currently assigned 20 percent cannot be assigned. Accordingly, evaluations in excess of 10 percent prior to May 25, 2005, and in excess of 20 percent for the period beginning May 25, 2005, for the Veteran's diabetes mellitus, type II, must be denied. See 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913. Respecting the Veteran's bilateral lower extremity peripheral neuropathy associated with his diabetes mellitus as a complication of that disability, the Board finds that the evidence throughout the appeal period demonstrates that the Veteran's peripheral neuropathy is more closely approximate to mild incomplete paralysis of the bilateral sciatic nerves. While the Board acknowledges that the Veteran has reported moderate subjective symptoms throughout the appeal period, the Veteran is not competent to opine on the severity of his peripheral neuropathy, although he is able to comment on his perceived severity of those symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue); see also Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). The Veteran did comment on his perceived severity of his peripheral neuropathy throughout the appeal period, particularly during his VA examinations. However, the examiners-particularly the January 2013 VA examination-considered the Veteran's lay statements, along with examination of the Veteran, and concluded that the Veteran's peripheral neuropathy was mild. There is no further medical evidence or medical opinion to contradict the conclusions reached by those VA examiners, and therefore the Board is compelled to find that the Veteran's symptomatology is more closely approximate to mild rather than moderate incomplete paralysis of the bilateral sciatic nerves. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). However, the Board does find that the evidence demonstrates that the Veteran's bilateral lower extremity peripheral neuropathy is shown beginning May 25, 2005; such is the first date on which the Veteran complained of neurological symptomatology of his bilateral legs. The September 2005 examiner specifically noted that mild peripheral neuropathy was related to the Veteran's diabetes, despite the lack of diagnostic evidence of such in the September 2005 EMG. Accordingly, while the Board must deny an evaluation in excess of 10 percent for the Veteran's bilateral lower extremity peripheral neuropathy, the Board finds that an effective date of those separate 10 percent evaluations is warranted beginning May 25, 2005, as that is the date on which entitlement to those separate evaluations arose, given that is the first date on which he complained of those neurological symptoms. See 38 C.F.R. §§ 3.400, 4.7, 4.124(a), Diagnostic Code 8520. Finally, the Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected diabetes mellitus, type II, and his associated bilateral lower extremity peripheral neuropathy, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Initial evaluations in excess of 10 percent prior to May 25, 2005, and in excess of 20 percent thereafter, for the Veteran's diabetes mellitus, type II, are denied. A 10 percent evaluation, but no higher, beginning May 25, 2005, for a separate evaluation for right lower extremity peripheral neuropathy associated with diabetes mellitus, type II, is granted. A 10 percent evaluation, but no higher, beginning May 25, 2005, for a separate evaluation for left lower extremity peripheral neuropathy associated with diabetes mellitus, type II, is granted. REMAND With respect to the PTSD claim, the Veteran initially filed his service connection claim for PTSD on September 19, 2003; the AOJ awarded service connection for PTSD in a June 2004 rating decision, and assigned a 10 percent evaluation for that disability, effective September 19, 2003. The Veteran submitted a timely notice of disagreement with that assigned evaluation for PTSD in August 2004. The AOJ issued a statement of the case respecting the increased evaluation claim for the Veteran's PTSD in January 2005. During the appeal period respecting that issue, the Veteran informed the AOJ that he received treatment at the Jacksonville Vet Center in a March 2005 statement. The AOJ obtained a "Summary of Treatment" letter from the Jacksonville Vet Center, dated September 2005, though it does not appear any actual treatment records were obtained. The AOJ, then, denied an increased evaluation for the Veteran's PTSD in the November 2005 rating decision, and included that issue in the November 2005 letter notifying the Veteran of that decision, which informed the Veteran that he had a year to appeal that rating decision. Following that rating decision, the AOJ then issued a March 2006 rating decision wherein it increased the Veteran's PTSD evaluation to 50 percent disabling, effective September 19, 2003; that rating decision additionally increased the Veteran's diabetes mellitus from 10 percent to 20 percent disabling. The same date as that rating decision, the AOJ additionally issued a statement of the case respecting the Veteran's diabetes mellitus, and a supplemental statement of the case respecting the increased evaluation claim for PTSD. The Veteran's November 2006 substantive appeal, VA Form 9-which is the same substantive appeal which gave the Board jurisdiction over the diabetes mellitus claim-solely indicated that the Veteran "want[ed] to appeal all of the issues listed on the statement of the case and any supplemental statements of the case that my local VA office sent to me." Without any explanation, the AOJ only certified the increased evaluation claim for diabetes and the later-awarded associated peripheral neuropathy claims to the Board in the December 2008 VA Form 8. However, it is extremely clear that the Veteran timely noted that there were outstanding treatment records in response to the January 2005 statement of the case, which triggered VA's duty to assist in obtaining those records, and which tolled the Veteran's time period for submitting a timely substantive appeal with respect to that issue until VA had readjudicated his claim. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Subsequently, VA did not readjudicate that claim in a supplemental statement of the case until March 2006. While the Board acknowledges that the Veteran did not submit his substantive appeal, VA Form 9, until November 2006, which is outside the prescribed 60-day window, the Board notes several issues that may have confused the Veteran with regards to the appellate status of that issue. First, the AOJ's adjudication of the increased evaluation claim in the November 2005 rating decision and that issue's inclusion in the November 2005 notice letter may have led the Veteran to believe that he had a year to submit a substantive appeal, given the language in that notice letter. The Veteran's substantive appeal, VA Form 9, was therefore timely when viewed in this light, as it was received within a year of the date of that November 2005 notice letter. Secondly, the Veteran clearly received a substantive appeal, VA Form 9, in a packet with the supplemental statement of the case respecting the Veteran's PTSD claim, which also included notice of the March 2006 rating decision, as well as the statement of the case respecting the diabetes mellitus claim-all of that correspondence was dated the same date. Given that all of those issues were adjudicated on the same date, a reasonable person would believe that they had the same time period for appeal of all those issues, instead of two different time periods. Moreover, it is clear that the Veteran checked and timely submitted the substantive appeal, VA Form 9, that he received in the correspondence he received in conjunction with both the March 2006 supplemental statement of the case and the statement of the case. Thus, the Board notes that it would be reasonable to believe that the Veteran also believed that he was appealing the PTSD claim adjudicated in the March 2006 supplemental statement of the case by submitting the November 2006 substantive appeal, VA Form 9. Finally, and most importantly, regardless of whether the Veteran actually timely submitted a substantive appeal, the Court has held that receipt of a substantive appeal, VA Form 9, is not purely jurisdictional and that the Board may waive the timeliness requirement of that document. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); Gonzales-Morales v. Principi, 16 Vet. App. 556, 557 (2003). In light of the circumstances of this case and in light of the interests of fairness and the prescription of the benefit of the doubt doctrine, the Board must find at this time that it has jurisdiction over the initial claim for increased evaluation of the Veteran's PTSD. Now that the Board has jurisdiction over the PTSD claim, it appears that the Jacksonville Vet Center records are still outstanding. Those records are considered VA treatment records for the purpose of the duty to assist, and it is clear that the duty to assist in that regard has yet to be fulfilled. A remand is subsequently necessary in order to obtain those records, as well as any outstanding VA and private treatment records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records). Additionally, in order to facilitate orderly and efficient adjudication of the Veteran's PTSD claim, on remand, the Veteran should be afforded a VA examination of his PTSD so that the current severity of that disability may be adequately assessed. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Finally, in light of the above remand of the PTSD claim, the Board finds that the TDIU claim is inextricably intertwined with that claim and consequently it is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Gainesville VA Medical Center, or any other VA medical facility that may have treated the Veteran, since July 2015 and associate those documents with the claims file. 2. Obtain any and all records from the Jacksonville Vet Center or any other Vet Center that may have been treated the Veteran, and associate those documents with the claims file. If those records are unavailable and it is determined that further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability that is associated with the claims file, and the Veteran should be so notified. 3. Ask the Veteran to identify any private treatment that he may have had for his PTSD, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA examination to determine the current severity of his psychiatric disability and its effect on his social and occupational functioning. The claims file must be made available to and reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should indicate all symptomatology associated with the Veteran's psychiatric disability, and provide a Global Assessment of Functioning (GAF) score in accordance with DSM-IV. The meaning of the GAF score relative to the Veteran's ability to work should be explained. The examiner should additionally opine whether the Veteran's psychiatric disability precludes him from obtaining and maintaining substantially gainful employment. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims for increased evaluation of his PTSD and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs