Citation Nr: 18149553 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-27 589A DATE: November 9, 2018 ORDER Entitlement to a rating higher than 20 percent prior to December 31, 2013 and higher than 40 percent on and thereafter for diabetes mellitus, type II is denied. Entitlement to a separate 20 percent rating for diabetic neuropathy of the left lower extremity is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate 20 percent rating for diabetic neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) prior to August 7, 2017; higher than 70 percent from October 1, 2017 to November 5, 2017; and higher than 70 percent from December 1, 2017 is denied. FINDINGS OF FACT 1. For the appeal period prior to December 13, 2013, the Veteran’s diabetes mellitus, type II did not necessitate regulation of activities. 2. For the appeal period from December 13, 2013, the Veteran’s diabetes mellitus, type II required the use of insulin, a restricted diet, and regulation of activities, but did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, with complications that would not be compensable if separately evaluated. 3. For the entire period on appeal, diabetic neuropathy of the left lower extremity has been manifested by no worse than moderate incomplete paralysis. 4. For the entire period on appeal, diabetic neuropathy of the right lower extremity has been manifested by no worse than moderate incomplete paralysis. 5. Prior to August 7, 2017; from October 1, 2017 to November 5, 2017; and from December 1, 2017, the service-connected PTSD does not more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to December 23, 2013 and in excess of 40 percent on and thereafter for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.119, Diagnostic Code 7913. 2. The criteria for a separate disability rating of 20 percent, but no greater, for moderate diabetic peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a separate disability rating of 20 percent, but no greater, for moderate diabetic peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520. 4. Prior to August 7, 2017; from October 1, 2017 to November 5, 2017; and from December 1, 2017, the criteria for a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1965 to February 1967. As indicated by the Veteran’s representative in the September 2018 brief, the Veteran has withdrawn his request for a Board hearing. As noted by the regional office (RO) in the June 2015 Statement of the Case, the Veteran’s claims for higher ratings were received in April 2013. During the current appeal period, the Veteran on multiple occasions was in receipt of a total disability rating (100 percent) requiring hospital treatment or observation for his PTSD pursuant to 38 C.F.R. § 4.29. See January 2018 Decision Review Officer (DRO) Decision code sheet. Thus, the issue on appeal, as it pertains to the service-connected PTSD, is characterized as entitlement to a rating higher than 70 percent prior to August 7, 2017; in excess of 70 percent from October 1, 2017 to November 5, 2017; and in excess of 70 percent from December 1, 2017. Notably, the January 2018 DRO decision also increased the rating for diabetes mellitus type II to 40 percent effective December 31, 2013; increased the rating for PTSD to 70 percent effective September 30, 2011; and granted a TDIU effective September 30, 2011 and service connection for a right knee disability. On September 13, 2018, the Board sent a letter asking the Veteran to confirm that he wished to have Disabled American Veterans (DAV) continue to represent him. He was advised that, if he did not respond within 30 days it would be assumed that he wanted DAV to continue representing him. As the Veteran has not replied, DAV continues to be his representative. Neither the Veteran nor his representative has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). Issues 1-3: Entitlement to a rating higher than 20 percent prior to December 31, 2013 and 40 percent on and thereafter for diabetes mellitus, type II; and entitlement to separate ratings for diabetic peripheral neuropathy of the lower extremities. Diabetes mellitus type II (herein after diabetes mellitus or diabetes) is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Such rating criteria provides that a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities 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. The use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. “Regulation of activities” is defined under Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Id. Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating; each criterion listed in a rating must be met or more closely approximated in order to warrant such a rating. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In other words, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component. Based upon a review of the record, the Board finds that the Veteran’s service-connected diabetes mellitus does not more nearly approximate the criteria for a rating in excess of 20 percent for the period prior to December 31, 2013 as the evidence does not show a regulation of activities was required. Similarly, as of December 31, 2013, the Board finds that a rating in excess of 40 percent is not more nearly approximated. In this regard, as of such date, the Veteran’s diabetes mellitus required the use of insulin, a restricted diet, and regulation of activities, but did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care providers, with complications that would not be compensable if separately rated. As discussed above, the Veteran’s claim for a higher rating for diabetes mellitus was received in April 2013. By way of history on VA examination in February 2012, the examiner noted that the Veteran’s diabetes mellitus was treated by a prescribed oral hypoglycemic agent and determined that the Veteran did not require regulation of activities as part of his medical management of diabetes mellitus. A rating decision in November 2012 granted service connection for diabetes mellitus and assigned a 20 percent rating. In April 2013 the Veteran filed a claim for a higher rating for diabetes noting that he now required insulin. The pertinent evidence during the appeal period shows that on VA examination for diabetes mellitus in December 2013, the examiner noted that the Veteran’s diabetes was managed by a restricted diet and insulin requiring one injection per day. The examiner stated that the Veteran required regulation of activities to the extent that he was taking insulin and had to regulate his meals and activities to control his diabetes. He visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. He did not have any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the past twelve months. The examiner opined that the Veteran did not have any complications from diabetes mellitus. On VA examination for diabetes mellitus in February 2016, the examiner noted that the Veteran had diabetic neuropathy. Medical history included restricted diet and insulin. The examiner noted that the Veteran required regulation of activities by having to avoid strenuous activities in general to avoid hypoglycemic reactions. The examiner also indicated that the Veteran saw a diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two time per month and did not require hospitalizations in the past year. He had weight loss and loss of strength attributable to diabetes mellitus amounting to 32 percent of loss of baseline weight. The examiner opined that the Veteran had diabetic neuropathy. On VA examination in November 2017 the Veteran’s medical history required monitoring meals, insulin and regulation of activities. The examiner noted that the Veteran required regulation of activities by having to avoid strenuous activities in general to avoid hypoglycemic reactions. The examiner also indicated that the Veteran saw a diabetic care provide for episodes of ketoacidosis and hypoglycemia less than two times per month and did not require hospitalizations in the past year. He did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The examiner opined that the Veteran did not have complications associated with diabetes mellitus. Treatment records during the appeal periods are consistent with the findings addressed above. Although on the February 2016 VA examination the Veteran had loss of weight and strength and compensable complications of diabetic neuropathy of the lower extremities, as will be discussed below, he did not meet all the other criteria as discussed above. See Tatum, supra. The Board acknowledges that the Veteran is competent to report symptoms pertaining to his diabetes mellitus. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the applicable diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s service-connected diabetes mellitus has been provided by the VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated and thus outweigh the Veteran’s lay evidence. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Note (1). In this regard, Diagnostic Code 8520 provides ratings for the sciatic nerve, which as discussed below is the nerve affected by the Veteran’s diabetic peripheral neuropathy of the lower extremities. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. With complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. It is noted that 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral combine with application of the bilateral factor. 38 C.F.R. § 4.124a. These descriptive words “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Here, on VA examination for diabetes mellitus in February 2016, the examiner opined that the Veteran had diabetic neuropathy. On VA examination in February 2016 for peripheral neuropathy, the Veteran reported a progression of symptoms consistent with diabetic peripheral neuropathy to include decreased sensation below both ankles, which was worse on the right side. His symptoms included paresthesias and/or dysesthesias and numbness that were moderate in the right lower extremity and mild in the left lower extremity. Knee extension and flexion was 4/5 on the right and 5/5 on the left. Bilateral ankle plantar flexion and dorsiflexion was 4/5. Deep tendon reflexes were 1+ in both lower extremities. Light touch was decreased in the ankles and left foot and absent in the right foot. Vibration was absent in the right lower extremity and decreased in the left lower extremity. Cold sensation was decreased in both lower extremities. The Veteran did not have muscle atrophy. He had trophic changes in both feet. EMG studies were not performed. The examiner opined that the Veteran did not have diabetic peripheral neuropathy in the upper extremities but did have diabetic neuropathy in the lower extremities affecting the sciatic nerve. The examiner determined that the Veteran had incomplete mild paralysis on the right side and moderate incomplete paralysis on the left side. Although the examiner checked the box indicating that the Veteran had mild incomplete paralysis of the right lower extremity this appears to be consistent with a typographical error because the examiner noted that loss of sensation was stocking distribution in both lower extremities from the ankle area and distal, which was more marked on the right side. In light of this finding and the other findings on the examination discussed above, which shows that neurological impairment in the right lower extremity was the same or worse than in the left lower extremity, the Board in resolving reasonable doubt in favor of the Veteran concludes that in reading the February 2016 VA examination for peripheral neuropathy as a whole in the context of all the evidence of record, the Veteran had moderate incomplete paralysis of the sciatic nerve in the right lower extremity. Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012). Furthermore, the Board acknowledges that, during the appeal periods, prior and subsequent examinations did not diagnose diabetic neuropathy of the lower extremities. However, on the February 2016 VA neurological examination, the Veteran reported a progression of symptoms consistent with diabetic peripheral neuropathy, and subsequent VA treatment records in February 2017 and January 2018 show that the Veteran complained of numbness in his feet and a feeling of pins and needles in his feet. Thus, in affording the Veteran the benefit of the doubt, the Board finds that for the entire appeal period the Veteran has had moderate incomplete paralysis in his lower extremities as a result of diabetes, which warrants separate 20 percent evaluations (but no greater) for each lower extremity under Diagnostic Code 8520. Issue 4: Entitlement to a rating higher than 70 percent for PTSD prior to August 7, 2017; from October 1, 2017 to November 5, 2017; and from December 1, 2017. The Veteran’s PTSD has been rated under the General Rating formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals interfering 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 work-like setting); inability to establish/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; memory loss for names of close relatives, own occupation, or own name. In addition, 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. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only 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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. 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 claimant’s condition affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-V is applicable in the instant case as the issue on appeal was certified to the Board in April 2018 and thus is after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. As shown by the VA examinations discussed below and treatment records, which are consistent with the VA examinations, at no point during the current appeal has the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran has had total occupational and social impairment. He also has not demonstrated symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; memory loss for names of close relatives, own occupation, or own name. On VA PTSD examination in December 2013, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that his wife and daughter were supportive and he had two close friends. The examiner noted that the Veteran was alert and fully oriented, his thinking was logical and goal-directed. His speech was fluent. There were no hallucinations or other indication of formal thought disorder. The Veteran denied being suicidal or homicidal and did not present an elevated risk to himself or others. On VA PTSD examination in February 2016, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. He reported no significant changes to his social, marital, and family history since his prior examination. He stated that he was still married to his wife and they got along well and visited their daughter twice a week. He had friends at the VFW whom he saw a few times a week. The examiner noted that he was dressed appropriately. Although the Veteran had spatial disorientation, his thought process was logical and goal directed, and thought content and speech was within normal limits. The Veteran denied suicidal and homicidal ideation. The examiner opined that the Veteran was not a current imminent or increased risk for harm to himself. It is also significant that on VA PTSD examination in November 2017, which was during a period of hospitalization for which the Veteran has been assigned a 100 percent rating pursuant to 38 C.F.R. § 4.29, the examiner opined that he had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The examiner noted that the Veteran had a decent relationship with his wife and stepdaughter. Although he neglected his personal appearance and hygiene, he was alert and fully oriented. His thinking was logical and goal directed. His speech was normal, auditory comprehension appeared intact. There were no hallucinations or indications of formal thought disorder. The Veteran denied being suicidal or homicidal and did not present an elevated risk to himself or others. Thus, for the reasons discussed above, the evidence does not more nearly approximate the criteria for total occupational and social impairment during the appeal. Final Matters In the September 2018 brief, the Veteran’s representative noted that the Veteran requested “the maximum benefit allowed by law and regulation,” including, but not limited to, an extraschedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran’s disability level and symptoms, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology pertaining to his service-connected diabetes mellitus, which at various times throughout the appeal has required the use of insulin, a restricted diet, and regulation of activities. The rating criteria also reasonably describes the service-connected diabetic neuropathy of the Veteran’s lower extremities. Similarly, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology pertaining to his service-connected PTSD as the criteria assess the level of occupational and social impairment attributable to the Veteran’s symptoms. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel