Citation Nr: 1626023 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 09-50 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) in excess of 20 percent for the service-connected type 2 diabetes mellitus with diabetic retinopathy and cataracts. 2. Entitlement to a higher (compensable) initial disability rating for the service-connected erectile dysfunction. 3. Entitlement to a separate compensable disability rating for neurological manifestations of the service-connected type 2 diabetes mellitus disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to ensure a total review of the evidence. On the December 2009 VA Form 9, the Veteran marked the appropriate line to indicate that he desired a hearing before the Board at the RO. In an October 2015 statement, the Veteran indicated that he did not want a Board hearing and asked for the claims file to be sent to the Board for adjudication. See October 2015 Veteran statement. As such, the Board deems the Veteran's request for a Board hearing withdrawn. See 38 C.F.R. § 20.704 (2015). The issue of entitlement to a separate compensable rating for neurological manifestations of the service-connected type 2 diabetes mellitus disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire rating period from May 9, 2008, the service-connected type 2 diabetes mellitus has been managed with insulin and diet only, and did not require regulation of activities. 2. For the entire initial rating period from May 23, 2008, the service-connected erectile dysfunction is not accompanied by deformity of the penis. CONCLUSIONS OF LAW 1. For the entire rating period from May 9, 2008, the criteria for an initial disability rating in excess of 20 percent for the service-connected type 2 diabetes mellitus have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.119, Diagnostic Code 7913 (2015). 2. For the entire initial rating period from May 23, 2008, the criteria for a higher (compensable) disability rating for erectile dysfunction have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.31, 4.115b, Diagnostic Code 7522 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). With regard to the issue of increased rating for diabetes mellitus, the RO issued a May 2008 preadjudicatory notice letter to the Veteran, which met the VCAA notice requirements. In this case, because the appeal for a higher initial rating for erectile dysfunction arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date questions). With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records (STRs), post-service VA and private treatment records, relevant VA examination reports, and the Veteran's written statements. VA most recently examined the Veteran's diabetes mellitus in April 2015. The Board finds that the above-referenced examination report is adequate for VA rating purposes because it was written after an interview with the Veteran and examination, and contains findings regarding the severity of the diabetes mellitus disability supported by clinical data. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to the appeal for a higher initial rating for erectile dysfunction, VA afforded the Veteran VA examinations in August 2012, April 2015, and June 2015. During the above-referenced VA examinations, the Veteran declined physical examination of the penis; moreover, during the June 2015 VA examination, the Veteran indicated that he intended to withdraw the appeal for a higher initial rating for erectile dysfunction. Therefore, the Board finds that VA has fulfilled the duty to assist the Veteran by providing a VA examination with respect to the appeal for a higher initial rating for erectile dysfunction, and a remand for a new examination is not necessary. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, the Board will evaluate the issue for a higher rating of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. The Board has considered whether a staged rating is warranted with respect to the issue of entitlement to a higher initial rating for the erectile dysfunction disability, and finds that the severity of the erectile dysfunction disability has not changed during the course of the appeal so as to warrant staged rating, as explained below. The Court has held that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the diabetes mellitus disability did not increase in severity during the rating period on appeal so as to warrant staged rating, as explained below. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. In this case, the weight of the evidence demonstrates that the type 2 diabetes mellitus disability did not undergo an increase within the one year period before the claim was filed with VA in May 2008. Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2015). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has reviewed all the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Increased Rating Analysis for Diabetes Mellitus The Veteran contends that a higher rating than 20 percent is warranted for the service-connected type 2 diabetes mellitus because of the increase in diabetes medications to maximum dosage. See, e.g., May 2008 Veteran statement; July 2008 VA Form 21-4138; July 2009 notice of disagreement; December 2009 VA Form 9. The record reflects that a March 2003 final rating decision granted service connection for type 2 diabetes mellitus, initially assigning a 20 percent disability rating effective July 25, 2001. The Veteran filed the current claim for increased rating for type 2 diabetes mellitus on May 9, 2008. For the entire rating period on appeal, the service-connected type 2 diabetes mellitus is rated as 20 percent disabling under Diagnostic Code (DC) 7913. See 38 C.F.R. § 4.118. Under DC 7913, diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated at 100 percent. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. After review of all the lay and medical evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the service-connected diabetes mellitus type 2 for the entire initial rating period from May 9, 2008. The record reflects that during the appeal period type 2 diabetes mellitus has been manageable by insulin and restricted diet only, and did not require regulation of activities. While the Veteran has indicated that a higher rating is warranted because of the increase in insulin dosage, at no point during the appeal period did the Veteran assert that the diabetes mellitus required regulation of activities. The August 2012 and April 2015 VA examination reports show specific clinical findings that the service-connected diabetes mellitus did not require regulation of activities. VA treatment records show that the Veteran was encouraged to exercise and increase his activity level rather than regulate it. See, e.g., December 2009, April 2013, October 2013 and July 2014 VA treatment records. Because the lay and medical evidence demonstrates that regulation of activities (avoidance of strenuous occupational and recreational activities) was not required, the criteria for a higher rating than 20 percent for diabetes mellitus are not met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7. Based on the foregoing, the weight of the lay and medical evidence of record demonstrates that during the appeal period type 2 diabetes mellitus has been manageable by insulin and restricted diet only, and did not require regulation of activities. For these reasons, the weight of the evidence is against the assignment of an initial disability rating in excess of 20 percent under DC 7913 for the service-connected type 2 diabetes mellitus for the entire rating period from May 9, 2008. 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7913. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Consideration of Separate Rating for Diabetic Retinopathy and Cataracts In this case, the Veteran is diagnosed with diabetic retinopathy and cataracts associated with the service-connected type 2 diabetes mellitus. The Board finds that the weight of the evidence is against a finding that the Veteran's diabetic retinopathy and cataracts are at least 10 percent disabling. See 38 C.F.R. § 4.79, DC 6006 (2015). DC 6006 directs that eye disabilities are to be rated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. In this case, at the April 2015 VA examination, the Veteran's visual acuity was recorded at 20/40 or better with no incapacitating episodes during the previous 12 months. See also October 2012 VA examination report. For these reasons, the Board finds that a separate compensable rating for diabetic retinopathy based on visual acuity or incapacitating episodes is not warranted. 38 C.F.R. §§ 4.3, 4.7. Initial Rating Analysis for Erectile Dysfunction The Veteran's erectile dysfunction disability has been assigned a noncompensable (zero percent) rating by analogy pursuant to 38 C.F.R. § 4.115b, DC 7522 (penis, deformity, with loss of erectile power). The Veteran has generally asserted that a compensable rating is warranted. See, e.g., July 2009 notice of disagreement. There is no schedular rating for loss of erectile power alone. When the rating schedule does not provide a compensable disability rating for a Diagnostic Code, a noncompensable rating is assigned when the requirements for a compensable disability rating are not met. 38 C.F.R. § 4.31. Under DC 7522, the loss of erectile power without penis deformity does not warrant a compensable rating (aside from special monthly compensation, which the Veteran is already receiving). In order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b, DC 7522. The VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent rating can be assigned for deformity of the penis with loss of erectile power under DC 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power; therefore, erectile dysfunction is not compensable in the absence of penile deformity. See M21-1MR, Part III, Subpart iv, Chapter 4, Section I, Topic 34, Block a (August 3, 2009). After review of the medical and lay evidence, the Board finds that, for the entire initial rating period on appeal from May 23, 2008, the Veteran's erectile dysfunction has been manifested by loss of erectile power such that the Veteran is unable to achieve an erection sufficient for penetration and ejaculation, but without deformity of the penis. As stated above, the Veteran was afforded two VA examinations to help assess the severity of the erectile dysfunction. In August 2012, the VA examiner diagnosed erectile dysfunction, and the Veteran declined a physical examination of the penis. In April 2015, the VA examiner again diagnosed erectile dysfunction, and the Veteran declined a physical examination of the penis and reported normal penile anatomy with no penile deformity or abnormality. A May 2015 VA Form 9 shows that the Veteran indicated that he did not decline a physical examination of the penis or report that penile anatomy was normal; therefore, the Veteran asserted that an accurate evaluation could not be determined. Based on the Veteran's May 2015 statement, VA provided another VA examination in June 2015. The June 2015 VA examiner noted that the Veteran indicated at the beginning of the examination that he did not want to proceed any further and that he intended to withdraw the claim for a higher rating for erectile dysfunction. The Veteran also declined a physical examination of the penis. Review of the VA and private treatment records during the appeal period shows no evidence of penile deformity. Furthermore, review of the lay evidence submitted by the Veteran shows no assertion that the Veteran suffers from a penile deformity at any point during the appeal period. While the May 2015 VA Form 9 shows that the Veteran indicated that he did not report to the April 2015 VA examiner that the penis was normal, the Veteran did not indicate or affirmatively report any abnormality of the penis. Based on the foregoing, evidence of record does not reveal any physical deformity of the Veteran's penis. 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); cf 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). The requirement under DC 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. In this case, the weight of the lay and medical evidence of record demonstrates that the Veteran does not have any penile deformity; therefore, the criteria for a compensable rating for erectile dysfunction under DC 7522 have not been met or more nearly approximated any point during the initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.115b. Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. The Board notes that the Veteran has already been granted special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a) (2015). See September 2009 rating decision. Accordingly, no further consideration regarding SMC is necessary. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating would have been warranted for the type 2 diabetes mellitus and erectile dysfunction disabilities for any part of the appeal period. 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. 38 C.F.R. § 3.321(b)(1); 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the service-connected diabetes mellitus disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. See 38 C.F.R. § 4.20 (2015) (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). During the appeal period, the Veteran's diabetes mellitus type 2 was managed with insulin and diet only and did not require regulation of activities. The schedular rating criteria (DC 7913) specifically rate on management of diabetes mellitus with insulin and restricted diet only, and other symptoms and criteria the Veteran does not meet during the appeal period. Based on the foregoing, the Board finds that the record does not reflect that the type 2 diabetes mellitus disability is so exceptional or unusual as to warrant referral for consideration of the assignment of an increased disability rating on an extraschedular basis. The Board also finds that, for the entire initial rating period from May 23, 2008, the symptomatology and impairment caused by the erectile dysfunction is specifically contemplated by the rating schedule, and no referral for extraschedular consideration is required. In this case, the Veteran's erectile dysfunction has been manifested by an inability to achieve an erection sufficient for penetration and ejaculation. This symptom, loss of erectile power, is specifically contemplated by the rating schedule in 38 C.F.R. § 4.115b, DC 7522. DC 7522 also provides for more severe symptomatology, including penile deformity, which the Veteran is not shown to have; therefore, the Board finds that the record does not reflect that the erectile dysfunction disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher initial disability rating on an extraschedular basis. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. The Veteran is service connected for posttraumatic stress disorder (PTSD), type 2 diabetes mellitus with diabetic retinopathy and cataracts, and erectile dysfunction. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. In the absence of exceptional factors associated with the service-connected diabetes mellitus and erectile dysfunction disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2015). A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran is in receipt of a 100 percent disability rating for PTSD from July 3, 1989 under DC 9411. See 38 C.F.R. § 4.130, (2015). The May 2008 VA examination report shows that the Veteran retired in 1989 due to the service-connected PTSD. Because a 100 percent schedular rating for PTSD for the entire rating period on appeal, there remains no rating period where the schedular rating is "less than total," as required for a TDIU. See 38 C.F.R. § 4.16(a). For this reason, the issue of entitlement to a TDIU at any time during entire rating period on appeal is now rendered moot. The question of whether the Veteran is entitled to an award of TDIU is rendered moot by the grant of a 100 percent schedular ("total") rating for PTSD, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 4.14 , 4.16. Special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. The Court declared, however, if a veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The evidence during the course of this appeal shows that the Veteran's service-connected PTSD rendered him unemployable, and the 100 percent schedular rating throughout the rating period specifically contemplates total unemployability (i.e., total occupational impairment) due to PTSD. Aside from PTSD (rated at 100 percent for the entire appeal period), service connection is in effect for type 2 diabetes mellitus with diabetic retinopathy and cataracts, and erectile dysfunction. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to the service-connected disabilities other than PTSD. The August 2012, April 2015, and June 2015 VA examiners opined that the service-connected diabetes mellitus and erectile dysfunction do not impact the Veteran's ability to work. Moreover, the August 2012 VA examiner opined that a review of the Veteran's chart and lay testimony demonstrates that there are no functional impairments or disabilities that preclude the Veteran from securing and maintaining substantially gainful employment in the form of moderate to sedentary type of physical activities as a result of the service-connected diabetes mellitus. The facts presented in this case are distinguishable from the Bradley v. Peake, 22 Vet. App. 280 (2008), and Buie cases because in this case the Veteran does not contend, and the evidence does not show, that any service-connected disability or disabilities other than the disability for which a 100 percent schedular rating is assigned (i.e., PTSD) render the Veteran unemployable. Under the facts presented in Bradley, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. If the Veteran were to be awarded a TDIU ("total" rating) based on service-connected PTSD rendering him unemployable for any time during the rating period, it would impermissibly result in the same disability being "counted twice" in the assignment of a total rating, as it would be rating the "total occupational impairment" twice. See generally 38 C.F.R. § 4.14. For the reasons above, the Board finds that a TDIU has not been raised and, therefore, is not before the Board on appeal. ORDER An increased disability rating in excess of 20 percent for the service-connected type diabetes mellitus, for the entire rating period from May 9, 2008, is denied. A higher (compensable) initial disability rating for the service-connected erectile dysfunction, for the entire initial rating period from May 23, 2008, is denied. REMAND Whether Separate Rating for Neurologic Manifestations As stated above, Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating under DC 7913. 38 C.F.R. § 4.115b. The August 2012 VA examiner noted that the Veteran had bilateral lower extremity diabetic peripheral neuropathy resulting in mild incomplete paralysis of the sciatic nerve of each lower extremity. The August 2012 VA examiner also indicated that there was no upper extremity diabetic peripheral neuropathy; however, the August 2012 VA examination report showed some abnormal neurological findings of the right and left upper extremities on physical examination, such as upper extremity pain, paresthesias, dysesthesias, tingling, and numbness. An October 2012 VA addendum report reflects that the VA examiner explained that, in addition to the August 2012 VA examiner's findings pertaining to the upper extremities, there are radiographic findings involving C5-C7 peripheral nerves that are comparative to the dermatomal patterns for abnormal findings in the upper extremities; however, the October 2012 VA examiner did not provide an opinion expressed in terms of likelihood as to whether the upper extremity findings are related to the service-connected type 2 diabetes mellitus. The October 2012 VA examiner also opined that the Veteran has lumbar spine degenerative disc disease that could be the cause or a contributory cause of the lower extremity mild sciatic nerve partial paralysis findings. The October 2012 VA examiner provided a statement in terms of mere possibility rather than probability, so does not constitute a medical opinion of probative value. See 38 C.F.R. § 3.102 (statements that involve "pure speculation or remote possibility" are not within the range of probability); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician's statement framed in terms such as "may" or "could" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (holding that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). Moreover, the Board finds that the October 2012 VA examiner's opinion is inadequate because it did not provide an opinion with rationale as to the etiology of the bilateral lower extremity mild incomplete paralysis of the sciatic nerve. See Barr, 21 Vet. App. 303. Based on the foregoing, the Board finds that a VA examination is necessary to assist in identifying the etiology, and assessing the current severity, of any upper or lower extremity neurological manifestations of the type 2 diabetes mellitus disability, including differentiating any reported symptoms that are due to non-service-connected disorder(s). See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (stating that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). Accordingly, the issue of entitlement to a separate compensable rating for neurological manifestations of the service-connected diabetes mellitus disability is REMANDED for the following actions: 1. Schedule the appropriate examination to identify and assess the presence and severity of any neurological abnormalities of the upper or lower extremities associated with the type 2 diabetes mellitus disability. The examiner should specifically comment on the relationship between any identified neurological abnormality of the upper or lower extremities and the type 2 diabetes mellitus disability. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The relevant documents in the claims file should be reviewed by the VA examiner in connection with the examination. 2. Thereafter, the issue of entitlement to a separate compensable rating for neurological manifestations of the service-connected type 2 diabetes mellitus disability should be adjudicated. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case (SSOC). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs