Citation Nr: 18152221 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-41 969 DATE: November 21, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea, secondary to posttraumatic stress disorder (PTSD) is granted. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) prior May 31, 2016 is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) from May 31, 2016 is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy left lower extremity is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy right lower extremity is denied. From October 11, 2012, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. REMANDED Entitlement to a TDIU prior to October 11, 2012, is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. In an October 2011 rating decision, the RO denied service connection for bilateral hearing loss and COPD. Although the Veteran was notified of the RO’s decision and his appellate rights in an October 2011 letter, he did not appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 2. The evidence received since the final October 2011 rating decision denying service connection for bilateral hearing loss and COPD does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims. 3. In a March 2012 rating decision, the RO denied service connection for sleep apnea. Although the Veteran was notified of the RO’s decision and his appellate rights in a March 2012 letter, he did not appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 4. The evidence received since the final March 2012 rating decision denying service connection for sleep apnea relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. 5. Sleep apnea is caused by service-connected PTSD. 6. Prior to May 31, 2016, the Veteran’s service-connected PTSD symptoms and impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment. 7. From May 31, 2016, the Veteran’s service-connected PTSD symptoms and overall impairment have more nearly approximated total occupational and social impairment. 8. The Veteran’s diabetes mellitus does not require the regulation of activities. 9. The Veteran’s left lower extremity peripheral neuropathy has been manifested by no more than moderate incomplete paralysis. 10. The Veteran’s right lower extremity peripheral neuropathy has been manifested by no more than moderate incomplete paralysis. 11. From October 11, 2012, the issue of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The October 2011 rating decision denying service connection for bilateral hearing loss and COPD is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to warrant reopening the claims of service connection for bilateral hearing loss and COPD. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The March 2012 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. New and material evidence has been received to warrant reopening the claim of service connection for sleep apnea. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. Prior to May 31, 2016, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 7. Since May 31, 2016, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 8. The criteria for a rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913; 82 Fed. Reg. 50806 (Nov. 2, 2017) (to be codified at 38 C.F.R. pt. 4). 9. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8620 (2017). 10. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8620 (2017). 11. From October 11, 2012, the issue of entitlement to TDIU is moot. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to December 1971. This matter came to the Board of Veterans’ Appeals (Board) on appeal from October 2011, April 2013, and June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2011 rating decision, the RO granted a temporary 100 percent evaluation for PTSD effective January 31, 2011, and assigned an evaluation of 50 percent from April 1, 2011, the day following discharge from hospitalization. The RO also denied service connection for bilateral hearing loss and COPD. The Veteran disagreed with the RO’s determination, and a Statement of the Case was issued on June 17, 2016 and July 21, 2016. The Veteran perfected a timely appeal in August 2016 for the PTSD claim. In the April 2013 rating decision, the RO denied entitlement to service connection for coronary artery disease. The RO increased the rating for the Veteran’s renal insufficiency to 60 percent, effective March 27, 2009. The RO also continued the ratings for PTSD at 50 percent disabling; diabetes mellitus type II at 20 percent disabling; peripheral neuropathy left lower extremity at 20 percent disabling; and peripheral neuropathy right lower extremity at 20 percent disabling. In a July 2016 rating decision, the RO, inter alia, increased the rating for PTSD to 50 percent, effective November 18, 2009, and assigned an evaluation of 70 percent from July 7, 2016. The RO also granted entitlement to special monthly compensation based on a total service-connected disability with additional service connected disabilities independently rated at 60 percent or more from January 31, 2011 to April 1, 2011. In the June 2017 rating decision, the RO denied entitlement to special monthly compensation based on aid and attendance. The RO denied reopening the claims of service connection for bilateral hearing loss and COPD. The RO reopened the claim of service connection for sleep apnea and denied the claim on the merits. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for a bilateral hearing loss, COPD, and sleep apnea before reaching any merits determination. In a February 2018 rating decision, the RO, inter alia, granted entitlement to service connection for coronary artery disease, and assigned an initial rating 30 percent rating, effective August 31, 2010. The Veteran did not perfect an appeal with respect to this issue; thus, it is not before the Board. The RO also increased the rating for renal insufficiency to 100 percent, effective October 11, 2012. The grant of a total rating for renal insufficiency constitutes a full award of the benefits sought on appeal with respect to the issue. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The Veteran has alleged an inability to maintain employment due to his service-connected disabilities. See e.g. June 2017 Appellate Brief. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. As such, the issue of entitlement to a TDIU is before the Board. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Bilateral Hearing Loss, COPD In an October 2011 rating decision, the RO denied entitlement to service connection for bilateral hearing loss and COPD, finding no evidence of a link between those conditions and military service. The Veteran was notified of his appellate rights in an October 2011 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s October 2011 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claims of service connection for bilateral hearing loss and COPD. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in October 2011. That evidence includes private and VA clinical records documenting diagnoses and treatment for hearing loss and pulmonary conditions. The Board finds that although this additional evidence was not of record at the time of the October 2011 rating decision, the record contains no indication that the Veteran’s bilateral hearing loss and COPD conditions are related to military service. For these reasons, the Board finds that the additional evidence received since the October 2011 rating decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claims of service connection for bilateral hearing loss and COPD are not reopened. 2. Sleep Apnea In a March 2012 rating decision, the RO denied entitlement to service connection for sleep apnea, finding no evidence of a link between those conditions and military service. The Veteran was notified of his appellate rights in a March 2012 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s March 2012 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in March 2012. The evidence includes an October 2016 private Disability Benefits Questionnaire (DBQ) from Dr. H.S., who opined that it is more likely than not the Veteran’s service-connected PTSD aids materially and substantially in the development and permanent aggravation of obstructive sleep apnea (OSA). Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim; therefore, the claim is reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Turning to the merits of the claim, the Veteran contends that sleep apnea is related to his active service, to include as secondary to his service-connected PTSD. For the reasons explained below, and affording the Veteran the benefit of the doubt, service connection for sleep apnea, secondary to PTSD is warranted. The record on appeal reflects treatment and diagnosis for a sleep apnea disability. For example, an October 2005 private clinical record shows that the Veteran underwent a sleep study which determined a diagnosis of obstructive sleep apnea. VA clinical records indicate that the Veteran requires ongoing us of CPAP machine for his sleep apnea. In an October 2016 private DBQ, doctor H.S. reported that the Veteran had a diagnosis of obstructive sleep apna (OSA). Doctor H.S. opined that based on his experience, interview with the Veteran, review of the medical records, and supporting literature, it is more likely than not the Veteran’s service-connected PTSD aids materially and substantially in the development and permanent aggravation of OSA. Doctor H.S. explained that research has shown that PTSD and other psychiatric disorders are commonly associated with OSA. A recent study found an arousal-based mechanism initiated by PTSD that promotes the development of OSA in trauma survivors. Dr. H.S. further noted another study found that with CPAP treatment, both OSA and PTSD symptoms decreased providing further evidence of the comorbidity of these conditions. In a June 2017 VA medical opinion, the examiner indicated that she had reviewed the conflicting medical evidence and stated that OSA is the result of obstruction of the upper airway, with symptoms including unexplained daytime fatigue, loud snoring, and periods of apnea. Risk factors include male sex, increasing age, obesity, and large neck circumference. OSA is associated with anatomical upper airways changes, including decreased muscle tone, increased soft tissue around the airway, and structural features that give rise to a narrowed airway. The examiner opined that the Veteran’s claimed sleep apnea is less likely as not due to PTSD, as stated in the studies sited by Dr. H.S., that there appears to be an association between psychiatric disorders and sleep apnea, with a prevalence of co-morbid psychiatric conditions in individuals with diagnosed sleep apnea. The examiner further noted that it remains unclear how the conditions are linked, and the temporality of the associations were not able to be determined. The examiner further noted that the Veteran’s OSA is more likely related to his age, obesity and upper airway anatomy, all known contributing factors. The evidence of record includes conflicting opinions from Dr. H.S. and the June 2017 VA examiner as to the etiology of the Veteran’s sleep apnea disability. Both Dr. H.S. and the VA examiner provided a thorough rationale for the basis of their medical opinions. Thus, the Board can find no basis upon which to assign greater probative weight to either medical opinion. As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See 38 U.S.C. § 5107(b). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for a sleep apnea disability. Thus, the Board finds that service connection for sleep apnea, secondary to PTSD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.310. Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 3. Entitlement to an initial rating in excess of 50 percent for PTSD prior to July 7, 2016, and in excess of 70 percent thereafter. The criterion for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is objective evidence demonstrating 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, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or 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 and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. Prior to July 7, 2016 For the period prior to July 7, 2016, the Veteran contends that a rating higher than 50 percent is warranted. For the following reasons, an initial 70 percent rating, but no higher, is warranted, prior to May 31, 2016. In a March 2009 statement, the Veteran ‘s wife reported that the Veteran was very moody and felt bad most days. She stated that he could not even go the mailbox and back. The Veteran’s wife indicated that his temper was bad most of the time, and that he was really irritable to most people. She noted that the Veteran shouts at people when they have not done anything. She further noted that he was depressed all of the time. An April 2010 VA examination report indicates that the Veteran reported that he was depressed and at times had suicidal thoughts. The Veteran avoided activities, places, or people that aroused recollections of the trauma. He demonstrated a feeling of detachment or estrangement from others. The Veteran had difficulty falling or staying asleep, and occasional nightmares. He also demonstrated irritability or outbursts of anger. The VA examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. A December 2010 clinical record shows that the Veteran continued to suffer from sleep disturbances due to nightmares, and continued to be mean to his wife. A January 2011 VA clinical record shows that the Veteran demonstrated daily suicidal ideation, aggression, impulse tendencies, anger and pessimism. A February 2011 VA clinical record indicates that the Veteran demonstrated symptoms of anger, intrusive thoughts, isolation, trouble sleeping, anxiety, short-term memory impairment, and suicidal ideation. He reported that he spent a lot of time by himself, because he did not want to have an angry outburst in front of his immediate family members. A December 2013 VA clinical record shows that the Veteran demonstrated anger, impulsivity, explosivity, anxiousness, and occasionally dysphoria. The clinician noted that the Veteran engaged in inappropriate behavior which he called “cutting up” and others found offensive. The clinician further noted that the Veteran was impulsive and had difficulty controlling his impulses. A July 2014 VA clinical record indicates that the Veteran had periods of rage which were attenuated well with medication. In this case the April 2010 VA examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. Additionally, VA clinical records and the wife’s competent and credible lay statements indicates that the Veteran demonstrated symptoms of depression, suicidal ideation, anger, impaired impulse control, intrusive thoughts, and isolation. The Board finds the April 2010 VA examination report, VA clinical records, and lay statements persuasive to demonstrate symptoms and impairment more closely approximating the 70 percent rating criteria. 38 C.F.R. 4.130, DC 9411. The Veteran is not, however, entitled to a higher, 100 percent rating prior to May 31, 2016. The VA examination report and treatment notes show that the Veteran did not experience PTSD symptoms such as: grossly inappropriate behavior; persistent delusions or hallucinations; or persistent danger of hurting self or others. For example, VA mental health evaluations dated from December 2010 to March 2016 indicates that the Veteran’s thought content did not appear delusional, psychotic or dangerous. He denied any auditory or visual hallucinations, and homicidal ideations. The Veteran did not demonstrate an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene, disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Repeated examinations have shown that the Veteran was appropriately dressed, with good hygiene and grooming. He was also alert and oriented to all parameters. Moreover, the evidence of record indicates that the Veteran has been married over 44 years, and has relationships with his children and family. Based on this evidence, the Board finds that the Veteran’s service-connected PTSD has been productive of symptomatology and impairment that more nearly approximated the criteria for a 70 percent rating, but not higher, prior to May 31, 2016. Since July 7, 2016 For the period since July 7, 2017, the Veteran contends that a rating higher than 70 percent is warranted. For the following reasons, the Board finds that since May 31, 2016, the Veteran’s PTSD was manifested by symptoms more nearly approximating total occupational and social impairment. A May 31, 2016 private Disability Benefits Questionnaire (DBQ) indicates that the Veteran demonstrated symptoms of depression, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, speech intermittently illogical, obscure or irrelevant, and difficulty understanding complex commands. He exhibited impaired judgment, impaired abstract thinking, and gross impairment in thought processes or communication. The Veteran had disturbances of motivation and mood, suicidal ideation, impaired impulse control and persistent delusions or hallucinations. The Veteran had persistent danger of hurting self or others, and disorientation to time or place. The Veteran exhibited neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran demonstrated difficulty in establishing and maintaining effective work and social relationships, and adapting to stressful circumstances. The Veteran exhibited an inability to establish and maintain effective relationships. The private psychologist concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. The private psychologist concluded that the Veteran was unable to maintain healthy intimate and peer relationships due to PTSD including, social anxiety, some panic attacks, isolation, and avoidance of people. The Veteran had marital, family, and peer problems. The Veteran gets easily angered in social situations and has trust issues. The private psychologist noted that the Veteran had difficulty communicating and getting along with others, especially in work and social settings. The private psychologist opined that the Veteran’s PTSD symptoms continue to be severe enough to disable him from sustaining any form of gainful employment activity uninterrupted to present. In July 2016, the Veteran underwent a VA medical examination. The Veteran demonstrated symptoms of depression, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and flattened affect. The Veteran had disturbances of motivation and mood, and inability to establish and maintain effective relationships. The Veteran exhibited difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances. The VA examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. As noted above, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the evidence of record indicates that both the private psychologist and VA examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. The evidence of record also indicates that the Veteran has exhibited symptoms of total occupational and social impairment. Specifically, the May 31, 2016 private DBQ indicates that the Veteran demonstrated symptoms of persistent delusions or hallucinations; danger of hurting self or others, and disorientation to time or place. The Veteran exhibited an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The private psychologist indicated that the Veteran was unable to maintain healthy intimate and peer relationships due to PTSD. The Veteran gets easily angered in social situations and has trust issues. The private psychologist noted that the Veteran had difficulty communicating and getting along with others, especially in work and social settings. The private psychologist opined that the Veteran’s PTSD symptoms continue to be severe enough to disable him from sustaining any form of gainful employment activity uninterrupted to present. In light of this evidence, the Board finds the private DBQ and the private psychologist’s opinion persuasive to demonstrate symptoms and impairment more closely approximating the 100 percent rating criteria, effective May 31, 2016. 38 C.F.R. 4.130, DC 9411. 4. Diabetes mellitus with erectile dysfunction The Veteran seeks a higher rating for service-connected diabetes mellitus with erectile dysfunction. He contends that the rating currently assigned does not reflect the severity of the disability. The Veteran’s diabetes mellitus type II is rated under Code 7913. Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). 82 Fed. Reg. 50806 (Nov. 2, 2017). Because the current increased rating claim for diabetes mellitus type II stems from claim that was filed in October 2012, the Board is required to consider the claim in light of both the former and revised schedular criteria in order to determine whether a higher rating is warranted for that disability. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Under the version of Code 7913 in effect prior to December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. 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 (avoidance of strenuous occupational and recreational 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. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Code 7913. Under the version of Code 7913 which became effective on December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring one or more daily injection of 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. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. 82 Fed. Reg. 50806 (Nov. 2, 2017). Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction ‘and’ is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). For the following reasons, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus type II, with erectile dysfunction. In order to warrant a 40 percent rating (notably under both the old and revised regulations) utilization of insulin, restricted diet, and the regulation of activities is required. The evidence of record shows the that Veteran’s diabetes mellitus has not required the collective use of insulin, restrictive diet, and the regulation of activities during the period on appeal. For example, VA private and VA clinical records dated from 2012 to 2018 do not indicate that the Veteran’s diabetes treatment required regulation of activities. Moreover, a June 2016 VA examination report shows that the Veteran’s treatment for diabetes mellitus required oral hypoglycemic agent and insulin pump. The examiner noted that the Veteran’s diabetes mellitus treatment did not require a restricted diet or regulation of activities. Thus, a rating in excess of 20 percent under the version of Diagnostic Code 7913 in effect prior to December 10, 2017 and the revised version which became effective on December 10, 2017, is not warranted. The Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein for diabetes under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Specifically, the Veteran is already service connected for erectile dysfunction due to diabetes mellitus, type II, at a non-compensable rating. A compensable rating is not warranted, as the June 2016 VA examination examiner found no evidence of penile deformity. 38 C.F.R. § 4.115b, DC 7522. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 5. Left Lower Extremity, Right Lower Extremity The RO rated the Veteran’s lower extremity peripheral neuropathy under Diagnostic Code 8620 for neuritis. Under those criteria, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8620. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board observes that the terms “mild,” “moderate” and “severe” are not defined in the 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 Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating, which may be assigned for neuritis not characterized by such organic changes, will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. The Veteran seeks a higher rating for his peripheral neuropathy of the right and left lower extremities. He contends that the ratings currently assigned do not reflect the severity of his disability. The record shows that the manifestations of the sciatic nerve do not result in incomplete moderately severe paralysis of either lower extremity. In the June 2016 VA examination report, the Veteran reported constant low-grade aching in the feet with burning pins and needles sensations. The examiner noted that the Veteran exhibited mild symptoms attributable to diabetic peripheral neuropathy. There was evidence of moderate paresthesias and/or dysesthesias, and numbness. The Veteran’s muscle strength was normal, and rate reflexes were decreased. Light touch in foot/toes were absent. There was a decrease in position sense and vibration sensation. There was no evidence of atrophy or trophic changes. The examiner concluded that the Veteran exhibited moderate incomplete paralysis of the left and right lower extremity. Considering the lay and medical evidence, the Board finds that the Veteran’s left and right lower extremity peripheral neuropathy does not more nearly approximate the level of disability for moderately severe incomplete paralysis. While a health care providers characterization of the level of severity of a disability is not binding on the Board, here, the characterizations of mild and moderate were consistent with the evidence of record. 38 C.F.R. § 3.100(a) (2017) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). Muscle strength was normal and there was no evidence of atrophy or trophic changes. This reflects that the symptoms did not more nearly approximate moderately severe incomplete paralysis. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the claims for a rating in excess of 20 percent for left and right lower extremity peripheral neuropathy, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 6. TDIU from October 11, 2012 A TDIU may be assigned “where the schedular rating is less than total” and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). In this case, the evidence of record suggest that the Veteran is precluded from securing and following any substantially gainful occupation due to his service-connected PTSD. See e.g. June 2017 Appellate Brief, May 2016 PTSD Disability Benefits Questionnaire. As set forth above, the Board’s has granted a 100 percent rating for PTSD from May 31, 2016. Additionally, the Veteran is already in receipt of SMC pursuant to 38 U.S.C. § 1114(s) from October 11, 2012. Thus, the issue of entitlement to a TDIU from October 11, 2012 must be dismissed as moot. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)). REASONS FOR REMAND 8. SMC for Aid and Attendance The Veteran asserts that SMC for aid and attendance is warranted. Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of a veteran to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in his/her daily environment. “Bedridden” will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352 (a). The Veteran is in receipt of service connection for the following disabilities: 1) renal insufficiency, rated 100 percent; 2) PTSD, rated 100 percent; 3) atherosclerotic cardiovascular disease and stable angina, rated 30 percent; 4) diabetes mellitus, type II, with erectile dysfunction, rated 20 percent; 5) peripheral neuropathy left lower extremity associated with diabetes mellitus type II, with erectile dysfunction, rated 20 percent; 6) peripheral neuropathy right lower extremity associated with diabetes mellitus type II, with erectile dysfunction, rated 20 percent; 7) bilateral cataracts status post right eye cataract surgery, associated with diabetes mellitus type II, with erectile dysfunction, rated noncompensable. The Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114(k) on account of loss of use of a creative organ from January 14, 2009. The Veteran is also in receipt of SMC pursuant to 38 U.S.C. § 1114(s) from October 11, 2012. The evidence currently of record does not provide enough detail for purposes of determining entitlement to SMC for aid and attendance based on the current service-connected disabilities. Therefore, an examination for aid and attendance by an appropriate examiner should be accomplished to assess whether the Veteran’s service-connected disabilities render him in need of the regular aid and attendance of another person. 9. TDIU prior to October 11, 2012 The issue of entitlement to a TDIU has been raised by the Veteran. Specifically, the Veteran asserts that he is unable to work as a result of his service-connected PTSD. See e.g. June 2017 Appellate Brief. The Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114(k) on account of loss of use of a creative organ from January 14, 2009. The Veteran was in receipt of SMC pursuant to 38 U.S.C. § 1114(s) 38 U.S.C. § 1114(s) from January 31, 2011 to April 1, 2011. The Veteran is currently in receipt of SMC pursuant to 38 U.S.C. § 1114(s) from October 11, 2012. The evidence of record indicates that the Veteran’s service-connected PTSD has precluded him from sustaining any form of substantial and gainful employment since November 18, 2009. See e.g. June 2017 Third Party Correspondence. The AOJ has not yet considered this issue in the first instance. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the AOJ should develop the issue of entitlement to a TDIU during the appeal period, from the November 18, 2009 effective date of the grant of service connection for PTSD, except for the period during which the Veteran was in receipt of SMC pursuant to 38 U.S.C. § 1114(s), from January 31, 2011 to April 1, 2011, and from October 11, 2012. For those periods of time, the issue of entitlement to a TDIU is moot. The RO should also determine, in the first instance, after implementing the Board’s decision herein, whether TDIU is moot for any other period and whether the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(s) for any other period. These matters are REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance examination. The claims file, including a copy of this Remand, must be made available for the examiner to review. All relevant tests and studies should be undertaken. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has incapacity that requires care or assistance on a regular basis to protect him from the hazards or dangers inherent to his daily environment. The examiner should provide a comprehensive report, including a complete rationale for all conclusions reached. 2. Adjudicate the issue of entitlement to a TDIU prior to October 2012, pursuant to Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008), other than the period from January 31, 2011 to April 1, 2011, during which the Veteran is already in receipt of SMC pursuant to 38 U.S.C. § 1114(s). This should include determining whether the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(s) based on implementation of the Board’s decisions herein and, consequently, whether the issue of TDIU is moot. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel