Citation Nr: 1752447 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-16 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for right knee meniscal tear with degenerative joint disease. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial rating in excess of 50 percent for depressive disorder. 5. Entitlement to a rating in excess of 10 percent for ulnar neuropathy, residuals of a right wrist shell fragment wound prior to January 24, 2008, and to a rating in excess of 30 percent thereafter. 6. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 7. Entitlement to a rating in excess of 20 percent for dextroscoliosis, Grade I anterior listhesis L4-5 with degenerative changes. 8. Entitlement to a rating in excess of 10 percent for degenerative changes of the left knee. 9. Entitlement to an initial rating in excess of 10 percent for left knee laxity. 10. Entitlement to an initial rating in excess of 10 percent for right wrist scar. 11. Entitlement to an effective date prior to September 28, 2010, for the award of a separate compensable rating for right wrist scar. 12. Entitlement to an effective date prior to January 30, 2012, for the award of a 20 percent rating for residuals of a shell fragment wound to the left buttock, with retained metallic fragment. REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) issued in April 2011, May 2012, November 2012 and April 2013. The Veteran's claims were remanded by the Board in May 2015 in order to provide the Veteran a Board videoconference hearing. In June 2015 the Veteran's attorney informed VA that the Veteran did not want a hearing. She also stated that the Veteran waived RO review of all additional evidence added to the Veteran's file. The Board notes that the May 2015 Board remand listed one of the issues as entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to January 30, 2012. A review of the file reveals that this is not the correct issue on appeal. The Veteran was awarded an increased rating of 20 percent for his low back disability effective the date of his claim for an increase, January 30, 2012. The Veteran disagreed with the 20 percent rating currently assigned. The correct issue on appeal is therefore, "Entitlement to a rating in excess of 20 percent for dextroscoliosis, Grade I anterior listhesis L4-5 with degenerative changes." Accordingly, the issue has been corrected to reflect the proper issue on appeal to the Board. The May 2015 Board remand included an issue of "Entitlement to an effective date prior to January 24, 2008, for the award of a 30 percent disability rating for shell fragment wound right wrist." As explained in the decision below, the issue is more properly described as "Entitlement to a rating in excess of 10 percent for ulnar neuropathy residuals of a right wrist shell fragment wound prior to January 24, 2008." Consequently the issues on the cover page of this decision have been modified to reflect the more proper description of the issues. The Veteran has been awarded a total disability rating based on individual unemployability (TDIU). The issues of entitlement to service connection for right and left lower extremity peripheral neuropathy and issues of increased ratings for lumbar spine and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not appeal an August 2008 rating decision that denied service connection for a right knee disorder. 2. Evidence received since the August 2008 rating decision is cumulative of the evidence that was of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim for service connection for a right knee disorder. 3. At no time since the grant of service connection for depression has that disability resulted in symptomology which more nearly approximates obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 4. Prior to January 24, 2008, the Veteran's residuals of a right wrist shell fragment wound were manifested by, at most, mild incomplete paralysis of the ulnar nerve. 5. From January 24, 2008, the Veteran's residuals of a right wrist shell fragment wound have been manifested by, at most, moderate incomplete paralysis of the ulnar nerve. 6. The Veteran's diabetes mellitus does not require regulation of activities. 7. The Veteran's scar of the right wrist has been noted to be painful, but not deep or unstable, and it does not cover an area of at least 12 square inches (77 square centimeters). 8. The Veteran did not appeal an August 2008 rating decision that denied an increased rating for residuals of a SFW of the right wrist, subsequently there was no indication of intent to claim an increased rating for right wrist SFW residuals prior to September 28, 2010, and the Veteran was not shown to have first developed a painful right wrist scar in the year prior to September 28, 2010. 9. The Veteran did not appeal an a December 1968 rating decision that granted a noncompensable rating for residuals of a SFW of the left buttock, subsequently there was no indication of intent to claim an increased rating for left buttock SFW residuals prior to January 30, 2012, and the Veteran was not shown to have first met the criteria for a 20 percent rating for SFW of the left buttock in the year prior to January 30, 2012. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of service connection for right knee meniscal tear with degenerative joint disease. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for a rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9434 (2017). 3. The criteria for a rating in excess of 10 percent prior to January 24, 2008 for ulnar neuropathy residuals of a right wrist shell fragment wound, and to a rating in excess of 30 percent thereafter, have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8516 (2017). 4. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2017). 5. The criteria for an initial rating in excess of 10 percent for scar of the right wrist have not been met. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801-7805 (2017). 6. The criteria for an effective date prior to September 28, 2010, for the grant of a separate compensable rating for a right wrist scar have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). 7. The criteria for an effective date prior to January 30, 2012, for the grant of a 20 percent rating for residuals of a left buttock shell fragment wound, with retained metallic fragment, have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (West 2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records (STRs), VA treatment records and private medical records have been associated with the record. The Veteran has been provided VA medical examinations, the results of which are sufficient to accurately adjudicate these claims. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Claim to Reopen In September 2010 the Veteran requested that his claim for service connection for right knee disability be reopened. The RO previously denied service connection for this disability in December 1968. In May 2007 and August 2008 rating decisions the RO denied the Veteran's request to reopen this claim. The Veteran did not appeal these decisions. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. § 20.1103 (2017). Additionally, new and material evidence had not been received prior to the expiration of the appeal period following the August 2008 rating decision. 38 C.F.R. § 3.156(b). Therefore, the August 2008 rating decision is now final, and the Veteran's claim for service connection may only be reopened if new and material evidence is received. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly-submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). As explained below, the Board finds that new and material evidence has not been received that is sufficient to reopen the Veteran's claim for service connection for a right knee disorder. The evidence of record prior to the August 2008 final rating decision included the Veteran's service treatment records, VA treatment records and private medical records. The STRs showed no right knee complaints or injury. After service, in January 1970, the Veteran injured his right knee on concrete steps and received VA inpatient treatment and a cast for his right knee injury. On VA examination in April 1976 the Veteran reported some giving way in the right knee. The diagnoses did not include any right knee disability. An August 1977 private treatment record notes that the Veteran reported injuring his right knee falling in a hole in 1967. The Veteran reported right knee pain. X-rays suggested possible fluid in the suprapatellar bursa. No fracture, dislocation or gross bony deformity was detected. On VA examination in January 2007, the Veteran was noted to have a right knee meniscal tear. The VA examiner opined that the Veteran's right knee condition was not caused by or related to his service-connected left knee condition. The August 2008 final rating decision noted that service connection for the Veteran's right knee disability had been denied because there was no record of a right knee injury or disability during service, there was no evidence that a right knee disability manifested in the year following discharge from service, and there was no medical evidence indicating that the right knee disability was related to the service-connected left knee disability. The Veteran's contentions do not provide any new evidence to reopen the claim for service connection. The contentions are merely cumulative of the other statements from the Veteran prior to the August 2008 rating decision and cannot reopen the claim. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). The medical evidence received since August 2008 contains many references to right knee disability. However, none of these records indicate that the Veteran has a current right knee disability that is related to service. Not only does the newly received evidence fail to relate the Veteran's current right knee disability to service, but it also does not indicate that the Veteran's right knee disability is caused or aggravated by the Veteran's service-connected left knee disability. Accordingly the newly obtained evidence and the Veteran's statements do not raise a reasonable possibility of substantiating the claim. Consequently the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for right knee meniscal tear with degenerative joint disease. III. Depression The May 2012 rating decision on appeal granted the Veteran service connection for depression. It assigned the Veteran a 30 percent rating effective from January 30, 2012, the date VA received the Veteran's claim for service connection for depression. The Veteran appealed the 30 percent rating assigned. An April 2013 rating decision granted the Veteran an increased rating of 50 percent for depression, also effective since January 30, 2012. After a careful review of the record, and for reasons and bases expressed below, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent for depression at any time since the grant of service connection. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. 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 (2017). Diagnostic Code 9434 provides that a 50 percent rating is warranted for depression where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment. Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 61 and 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. GAF 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; child frequently beats up other children, is defiant at home, and is failing at school). See 38 C.F.R. § 4.130. On VA examination in March 2012, the examiner stated that there is occasional decrease in work efficiency or there are intermittent periods of inability to perform occupational tasks due to signs and symptoms of the Veteran's depression, but there is generally satisfactory functioning. The Veteran was attentive, cooperative, and responsive throughout this examination. Affective range altered between being very pleasant and engaging, to at times appearing very distressed. The examiner stated that the Veteran most likely was having some difficulty with short term memory and concentration as a result of his depression. GAF was noted to be 55. A January 2013 VA treatment record notes that the Veteran was under stress from running his business. The examiner stated that the Veteran had some dysthymia, but no depression or suicidal/homicidal ideation. In January 2013 the Veteran's attorney asserted that the March 2012 VA examination recognized that the Veteran had thoughts that he would be better off dead or of hurting himself in some way. A review of the March 2012 VA examination report does not reveal any such statement by the Veteran. The Board finds that the Veteran has not met the criteria for a rating in excess of 50 percent at any time since the grant of service connection. The Veteran has consistently denied suicidal and homicidal ideation. The Veterans VA outpatient treatment records dated from January 2012 through April 2017 contain a number of instances where the Veteran was screened for depression, and all of the screenings, most recently in December 2016, were noted to be negative for depression. The VA treatment records do not indicate complaints or treatment for depression. The medical records have not reflected that the Veteran's depression results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships; or symptoms of a similar nature and severity. The Board further notes that the March 2012 VA examiner indicated the Veteran to have a GAF of 55. The Board notes that a GAF score of 51 to 60 indicates only 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). This further indicates that the Veteran has not met the criteria for a 70 percent rating for his depressive disorder. Accordingly, the Board concludes that the criteria for an initial rating in excess of 50 percent have not been met for the Veteran's depressive disorder at any time since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). IV. Right Ulnar Neuropathy The Veteran's claim for an increased rating for his right wrist shell fragment wound disability was received in September 2010. The Veteran's right hand is his dominant hand. The Veteran was originally granted service connection and a 10 percent rating for this disability by a December 1968 rating decision. A July 1976 rating decision granted the Veteran an increased rating of 30 percent for his right wrist disability based on muscle injury. The RO issued a rating decision in April 2011 stating that there had been clear and unmistakable error in combining the evaluation of the ulnar neuropathy of the right wrist with the evaluation of SFW muscle injury to the right wrist. The RO reinstated a separate 10 percent rating under DC 8516 from October 1968, and continued the separate 30 percent (protected) rating under DC 5307 from March 1976. In April 2013 the RO increased the Veteran's right wrist ulnar neuropathy rating under DC 8516 from 10 percent to 30 percent, effective from January 24, 2008. The Veteran seeks a rating in excess of 10 percent prior to January 24, 2008, and a rating in excess of 30 percent thereafter, for his ulnar neuropathy, residuals of a right wrist SFW. As directed by 38 C.F.R. § 4.124a, Diagnostic Code 8516 provides for a 10 percent schedular disability rating for mild symptoms involving the ulnar nerve of either the major or minor side. With moderate symptoms involving the ulnar nerve, a 30 percent rating is assignable for the major side, and a 20 percent rating is assignable for the minor side. With severe symptoms involving the ulnar nerve, a 40 percent rating is assignable for the major side, and a 30 percent rating is assignable for the minor side. With complete paralysis of the ulnar nerve, a 60 percent rating is assignable for the major side, and a 50 percent rating is assignable for the minor side. Symptoms of complete paralysis are noted to include the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; and flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2017). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). a. Prior to January 24, 2008 On VA examination in April 1970 the VA examiner noted that the Veteran had decreased sensation in the hypothenar eminence of the fourth and fifth fingers of the right hand. There was decreased grip strength of the right hand when compared to the left hand. The examiner diagnosed SFW, right wrist, with sensory changes in the ulnar aspect of the hand with no demonstrable loss of function, except for grip strength. When examined again by VA in March 1971, the Veteran reported right wrist pain. Examination revealed normal sensation except for a small area immediately below the site of the right wrist scar. The Veteran had full range of motion of the right wrist. The examiner stated that the Veteran had good grip strength in the right hand, but that it might be slightly weaker when compared to the left hand. The Veteran described symptoms of pain, stiffness and weakness involving, the right, hand and wrist when examined by VA in April 1976. On examination there was numbness along the ulnar aspect of the right hand, as well as the right fourth and fifth fingers. The examiner diagnosed residuals of a SFW to the volar ulnar aspect of the right wrist with impairment of the ulnar nerve and residual hypesthesia with weakness in the grip of the hand. On VA examination in May 1980, the Veteran reported daily right wrist and hand pain, as well as numbness in the right fourth and fifth fingers. Examination revealed decreased sensation to light touch and pinprick over the fourth and fifth fingers extending into the palm of the hand and to the wrist. There was no evidence of any atrophy and reflexes were normal. Grip strength in the right hand was 4+ out of 5 (5/5 is normal). The examiner diagnosed residuals shell wound right wrist with impairment of ulnar nerve sensory function, very minor motor impairment. Paresthesias induced by touching or grip radiation up right arm. The medical evidence prior to January 24, 2008 indicates that the Veteran's grip strength was slightly less than normal, that he had full range of motion of the wrist, reflexes were normal and that there was no atrophy. The Veteran's symptoms were primarily right wrist pain, and numbness along the ulnar aspect of the right hand, as well as the right fourth and fifth fingers. Accordingly, the Board finds that the severity of the disability approximates mild incomplete paralysis rather than moderate incomplete paralysis under the rating schedule. The Veteran's reported symptoms of pain and some areas of numbness approximate mild incomplete paralysis. As the manifestations and reported symptoms were not more severe and as his range of motion was normal and his strength only slightly less than normal, a higher rating was not warranted at any time prior to January 24, 2008. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet.App. 505 (2007). b. From January 24, 2008 On VA examination in May 2008 the Veteran reported that he was never pain free in the right wrist or the right hand. He reported stiffness and swelling. He said that the severity of his discomfort was 10/10, almost all of the time. The right wrist was in a brace. The Veteran reported that he could dress, undress, though all motions with the right hand were quite painful, and he tried to avoid driving over any particular length of time. The Veteran stated that he restricted his lifting to about 10 to 15 pounds. There was an area of near complete absence to sensation to pain, pinprick, and light touch. Proprioception and vibration remained intact. There was also pain and tenderness over the head of the ulnar, and slight swelling, without redness or drainage identified. The Veteran was able to approximate, though very slowly, the tip of the thumb to the tips of the index, middle, ring, and little fingers and to approximate the tips of the index middle, ring, and little fingers to the palmar crease, though extremely slowly. The Veteran's hand grip was approximately 4+/5+ as compared to the left hand. On VA examination in October 2010 the Veteran reported continuous pain, both dull and sharp, in the right wrist. The pain did not radiate. He reported flare-ups at least twice a week. He said that it affected his occupation as a mechanic, it slowed him down. He reported that he missed about 30 days of work a year because of his wrist. He said that it affected his ability to do any yard work at home, or play golf. He reported swelling at times, depending on how much he used his right hand. The Veteran stated that he could lift 10 pounds frequently, and 20 pounds occasionally, with his right wrist. The Veteran was noted to have partial ulnar distal sensory neuropathy, with decreased appreciation of touch, pain and vibration confined to the ulnar distribution of the right hand involving half of the ring finger longitudinally and the whole of the fifth finger. In January 2012 the Veteran reported that he constantly experienced nerve pain on his right wrist and in his right hand. He said that he had to be careful to not bump his right hand wrist because if he did he experienced a sharp pain which was so severe that he could not use his hand for an hour or more thereafter. For that reason he wore a bandage on his right wrist to help with the pain. He reported numbness on the side of his right hand. He stated that the ulnar pain extended from the tip of his little finger down the side of his arm, reaching halfway to the elbow. The Veteran stated that the pain was constant and became much worse when he bent his right wrist. The Veteran asserted that the pain in his wrist was unbearable. He reported that it was hard for him to hold onto things with his right hand. He said that he could not pick coins up off the table. He had to scoop the coins to the side of the table into his hand. On VA examination in July 2012 the Veteran reported increased symptoms, now retrograde into the ulnar nerve distribution of the right forearm. Examination revealed the Veteran to have decreased sensation of the right hand and fingers. He had moderate intermittent pain, paresthesias and numbness of the right hand. He had 4/5 grip strength in the right hand. The VA examiner indicated that the Veteran's right ulnar nerve was normal. The Veteran reported that he had some difficulty with grip in the right hand when his numbness is severe, but stated that he generally worked through any problems. The examiner stated that there was no change in the right wrist ulnar nerve peripheral neuropathy, but that in the right forearm there was now retrograde distribution of the right forearm neuropathy. The Board finds the Veteran is not entitled to a rating in excess of 30 percent for right wrist ulnar neuropathy under Diagnostic Code 8516. The evidence of record shows moderate incomplete paralysis. The Veteran's right ulnar disabilities were manifested by decreased sensation of the right hand and fingers. He had moderate intermittent pain, paresthesias and numbness of the right hand. These symptoms caused the Veteran problems with picking things up. The Board determines that these symptoms warrant a moderate rating. The record reveals that the Veteran has only slightly diminished right grip strength. Additionally he can touch all of his right finger tips to his right thumb and to the palmer crease. There is no indication that the Veteran is unable to spread his fingers. As the Veteran is right hand dominate the current 30 percent rating for right lunar neuropathy residual of a shell fragment would is appropriate under Diagnostic Code 8516. A rating in excess of 30 percent is not warranted as the right wrist has shown no symptoms of complete paralysis of the ulnar nerves s described in Diagnostic Code 8516. Moreover, the symptoms described since January 24, 2008 have not amounted to what the Board would consider severe incomplete paralysis. See Fenderson, see also Hart. This conclusion is supported by the fact that no examiner has described the Veteran's symptoms as severe in nature. V. Diabetes Mellitus An April 2002 rating decision granted the Veteran service connection and a 20 percent rating for diabetes mellitus. The Veteran submitted his claim for an increased rating in September 2010. The Veteran's diabetes mellitus is rated according to the provisions provided in 38 C.F.R. § 4.119, Diagnostic Code 7913. Under DC 7913, a 20 percent rating requires insulin and a restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when the disease requires the taking of insulin, a restricted diet, and regulation of activities. A 60 percent rating requires the taking of insulin, a 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 total schedular (100 percent) rating for diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength, or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Code 7913. On VA examination in October 2010 it was noted that the Veteran treated his diabetes with insulin and metformin. The Veteran denied ketoacidosis and denied any hospital admissions for diabetes. He reported that he had hypoglycemic attacks twice a week and that he was able to self-treat them. He had never had to see a care giver for any of the low blood glucose events. The Veteran had been recommended an exercise program. His activities of daily living were in no way restricted due to his diabetes. The Veteran reported that the diabetes did not adversely affect his occupation. At the examination the Veteran stated that he was unable to play golf due to his right wrist shell fragment wound injury. Although the Veteran reported in a January 2012 VA Form 21-4138 that he was easily fatigued due to diabetes and that he could not jog, workout, golf or walk due to diabetes the Board does not find this statement to be credible. Subsequent VA treatment records indicate that the Veteran was walking two miles at a time and that he was encouraged to engage in even more activity. In September 2016, the Veteran reported that he was walking two miles a couple times a week. The VA medical provider congratulated the Veteran and encouraged him to increase his exercise. An October 2016 VA treatment record notes that the Veteran was walking 15 minutes almost every night and that his blood sugars were better on the days after he exercised. A January 2017 VA treatment record notes that the Veteran had diabetes mellitus without complications. In January 2012 the Veteran reported that his wife was a nurse who kept him on a rigid diabetic diet and exercise program. In a January 2013 letter the Veteran's attorney provided a history of the Veteran's diabetes disability and then asserted that the Veteran was entitled to a higher rating based on his condition requiring insulin, regulation of activities, and restricted diet, as well as causing diarrhea and debilitating fatigue. What distinguishes the schedular criteria for the currently assigned 20 percent rating for diabetes from those for the next higher rating of 40 percent is that in addition to requiring diet and insulin for control, the diabetes also must require regulation of activities. (The Board notes that the criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive, i.e., each level of increase in the rating requires additional criteria which must all be met to warrant the increase in the rating.) The record does not show that at any time during the appeal period that the Veteran's diabetes required regulation of his activities. Although the Veteran's attorney has asserted that the Veteran's diabetes requires regulation of activities, such is not shown by the record. The Veteran is on an exercise program and he has been encouraged to exercise even more. The VA outpatient treatment records provide no description of fatigue due to diabetes, functional loss or significant effect of diabetes on the Veteran's daily activities. The evidence does not show that at any time during the appeal period manifestations of the Veteran's diabetes mellitus satisfied, or approximated, the criteria for the next higher, 40 percent, rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). Consequently, a rating in excess of 20 percent for diabetes mellitus is not warranted. VI. Right Wrist Scar The April 2013 rating decision on appeal granted the Veteran service connection for a right wrist scar, effective from September 28, 2010. It assigned the Veteran a 10 percent rating effective from September 28, 2010. The Veteran appealed the 10 percent rating assigned. After a careful review of the record, and for reasons and bases expressed below, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right wrist scar at any time since the grant of service connection. On VA examination in October 2010 the Veteran had a linear scar on the right wrist that was three centimeters long and 0.1 centimeters wide. The scar was tender, it was skin deep, it was skin colored, it was stable, it was smooth, and there was no elevation or depression. There was no underlying tissue loss. There was no adherence or asymmetry or disfigurement. The total area of scar is 0.3 centimeters. The Veteran currently has a 10 percent rating under Diagnostic Code 7804 for a painful scar. A higher rating under DC 7804 requires that there be three or more scars that are unstable or painful. The record shows that the Veteran only has one scar of the right wrist. Accordingly the Veteran is not entitled to a rating in excess of 10 percent for his right wrist scar under DC 7804. The Board considered other potentially applicable codes. Diagnostic Code 7800 is not for application as it pertains to scars of the head, face, or neck. Diagnostic Code 7801 does not apply in this case, as the evidence does not demonstrate that the Veteran's scar is deep or nonlinear. Diagnostic Code 7802 is also inapplicable as this diagnostic code does not provide for a rating in excess of 10 percent. Additionally, the Board notes that the Veteran's scar does not result in any other disabling manifestations which would entitle the Veteran to a compensable rating under any other diagnostic codes not contemplated by the diagnostic codes pertaining to the scars. Accordingly, the Board concludes that the criteria for an initial rating in excess of 10 percent have not been met for the Veteran's right wrist scar at any time during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet.App. 505 (2007). VII. Right Wrist Effective Date The April 2013 rating decision on appeal granted the Veteran a separate compensable rating for a right wrist scar, effective from September 28, 2010. In a January 2014 letter, the Veteran's attorney asserted that the Veteran should be granted a 10 percent rating for the right wrist scar effective from at least a year prior to that date. She pointed out that a May 1970 VA examination report described the Veteran's scar as sensitive to stroking and that an April 1976 VA examination stated that the Veteran' scar was quite tender to pressure. The attorney maintains that since the Veteran was shown to have a painful scar prior to the September 28, 2010 claim, that the Veteran is therefore entitled to an effective date a year prior to September 28, 2010, based on 38 C.F.R. § 3.400(o)(2). Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Further, under VA regulations, "[a] report of examination or hospitalization" may constitute an "informal claim for benefits... if the report relates to a disability which may establish entitlement." 38 C.F.R. § 3.157(a) (2017). (The Board is aware of the elimination of § 3.157, however, the restrictive changes shall not be applied retroactively.) Once a formal claim for compensation has been allowed, an informal claim for an increased disability rating "'will be initiated by a report of examination or hospitalization for previously established service-connected disabilities." Norris v. West, 12 Vet. App. 413, 417 (1999); see 38 C.F.R. § 3.157(b); see also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011) ("It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened"), aff'd Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013). The Board notes that an August 2008 rating decision denied the Veteran's claim for an increased rating for residuals of a right wrist SFW. The denial was based on a May 2008 rating decision that noted a right wrist scar but did not state that the scar was tender or painful. The Veteran did not submit a notice of disagreement in response to the August 2008 rating decision denial of an increased rating for residuals of a right wrist SFW, or otherwise indicating that he thought he should be granted a separate rating for a right wrist scar. Consequently, the August 2008 rating decision is final and the Veteran is not entitled to a separate compensable rating for a right wrist scar based on it being a residual of his right wrist disability, prior to August 4, 2008, absent a claim for clear and unmistakable error (CUE) in the August 2008 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). The Veteran and his attorney have made no assertions of CUE. A review of the claims file shows that the Veteran did not submit any document that could be considered a claim for an increased rating for residuals of a right wrist SFW subsequent to August 4, 2008 and prior to September 28, 2010. Additionally there are no VA examinations, VA hospitalizations or any other medical records, subsequent to August 4, 2008 and prior to September 28, 2010, indicating that the Veteran had a tender right wrist SFW scar. Consequently the Veteran's claim for an increase is no earlier than September 28, 2010. The Board has considered the attorney's argument that the Veteran has had a tender right wrist SFW scar for more than a year prior to September 28, 2010, and her assertion that the Veteran is therefore entitled to an effective date a year prior to September 28, 2010. However, the Veteran is not entitled to an effective date prior to September 28, 2010 based on 38 C.F.R. § 3.400(o)(2). An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one-year period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In this case there is no provision entitling the Veteran to an effective date prior to receipt of his September 28, 2010 claim for an increase. Accordingly, the Board finds that the criteria for an effective date prior to September 28, 2010, for the grant of a separate compensable rating for right wrist SFW scar have not been met. 38 C.F.R. § 3.400. VIII. Left Buttock SFW Effective Date A November 1968 rating decision granted the Veteran service connection and a noncompensable rating for SFW to the left buttock. The Veteran's claim for an increased rating was received on January 30, 2012. The November 2012 rating decision on appeal awarded the Veteran a 20 percent rating for this disability, effective from January 30, 2012. The Veteran's attorney asserts that the 1968 rating decision erred in not granting a 20 percent rating for the Veteran's residuals of a SFW to the left buttock. She asserts that the retained metal fragment found on VA examination in July 2012 has been in the Veteran's buttock all along and therefore the Veteran's residuals of a SFW to the left buttock has been a "moderate" injury all along. She then went on to assert that the effective date of the 20 percent rating should be at least one year prior to the Veteran's filing his claim for an increase in January 2012. With regards to the attorney's assertion that there was error in the 1968 rating decision, the Board notes that she has not at any time asserted that there was clear and unmistakable error in that decision. Consequently, no claim of CUE with regards to the December 1968 rating decision has been raised. Following the final December 1968 rating decision awarding a noncompensable rating for left buttock SFW, and prior to January 30, 2012, there was no communication from the Veteran indicating either a formal or informal claim for an increased rating. There were no VA medical examinations or hospitalizations showing any left buttock disability. In fact, VA examinations in April 1970 and May 1980 noted that the Veteran had no symptoms residual of the SFW of the left buttock. Consequently January 30, 2012 is the date of receipt of claim. The Board has considered the attorney's argument that the Veteran has met the criteria for a 20 percent rating for right buttock scar for more than a year prior to January 30, 2012, and her assertion that the Veteran is therefore entitled to an effective date a year prior to January 30, 2012. However, the Veteran is not entitled to an effective date prior to January 30, 2012 based on 38 C.F.R. § 3.400(o)(2). An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one-year period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In this case there is no provision entitling the Veteran to an effective date prior to receipt of his January 30, 2012 claim for an increase. Accordingly, the Board finds that the criteria for an effective date prior to January 30, 2012, for the grant of a 20 percent rating for residuals of a left buttock SFW have not been met. 38 C.F.R. § 3.400. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for right knee meniscal tear with degenerative joint disease. Entitlement to an initial rating in excess of 50 percent for depressive disorder is denied. Entitlement to a rating in excess of 10 percent for ulnar neuropathy, residuals of a right wrist shell fragment wound prior to January 24, 2008, and to a rating in excess of 30 percent thereafter is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an initial rating in excess of 10 percent for right wrist scar is denied. Entitlement to an effective date prior to September 28, 2010 for the grant of a separate compensable rating for right wrist SFW scar is denied. Entitlement to an effective date prior to January 30, 2012, for the award of a 20 percent rating for residuals of a left buttock shell fragment wound, with retained metallic fragment, is denied. REMAND In January 2008 the Veteran submitted a claim for service connection for peripheral neuropathy secondary to diabetes and to exposure to Agent Orange. There are numerous VA medical records indicating that the Veteran does not have peripheral neuropathy of the lower extremities. However, there is also an October 2016 VA treatment record indicating that the Veteran had neuropathy in the right foot (located in a May 3, 2017 entry in VBMS). The Veteran's peripheral neuropathy claims must be remanded to obtain a VA medical examination to determine whether the Veteran has had peripheral neuropathy of either lower extremity at any time during the appeal period. The Veteran's lumbar spine was most recently examined by VA in July 2012. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. In this case, it does not appear that the July 2012 VA examiner performed both active and passive range of motion testing of the Veteran's lumbar spine; moreover, the examination report does not address weight-bearing versus nonweight-bearing testing. Notably, in Correia, the Court found similar range of motion testing to be inadequate. As the July 2012 VA examination report does not provide all of the information specified by Correia, this claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate the claim. The Veteran's left knee disabilities were most recently examined by VA in July 2012. It does not appear that the July 2012 VA examiner performed both active and passive range of motion testing of the Veteran's left knee; moreover, the examination report does not address weight-bearing versus nonweight-bearing testing. As the July 2012 VA examination report does not provide all of the information specified by Correia, the left knee claims must be remanded for a new VA examination to obtain the information necessary to properly adjudicate the claims. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an appropriate VA medical examination to determine whether the Veteran has experienced peripheral neuropathy of either lower extremity at any time during the appeal period. The examiner should discuss the many records indicating no diabetic peripheral neuropathy of the lower extremities as well as the October 18, 2016 VA medical record which indicates that the Veteran had neuropathy in the right foot. The examiner is asked to explain the reasons behind all opinions expressed and conclusions reached. If the Veteran fails to report for the examination the examiner should provide an opinion based on a review of the record. 2. Schedule the Veteran for an appropriate VA examination to assess the manifestations of the Veteran's lumbar spine disability and his left knee disabilities. All testing deemed necessary must be conducted and results reported in detail. The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the thoracolumbar spine and left knee. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the thoracolumbar spine and left knee. The testing should also include testing of the right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 3. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims. If any decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West 2012). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs