Citation Nr: 18155107 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 14-28 618A DATE: December 3, 2018 ORDER A rating higher than 70 percent for traumatic brain injury (TBI) with cognitive and speech impairment with posttraumatic stress disorder (PTSD) is denied. A rating higher than 20 percent for diabetes mellitus is denied. A 20 percent rating for peripheral neuropathy of the right upper extremity from November 18, 2009 to May 11, 2016 is granted. A rating higher than 20 percent for peripheral neuropathy of the right upper extremity is not warranted for any period and the claim is denied. A 20 percent rating for peripheral neuropathy of the left upper extremity from November 18, 2009 to May 11, 2016 is granted. A rating higher than 20 percent for peripheral neuropathy of the left upper extremity is not warranted for any period and the claim is denied. Entitlement to a compensable rating for erectile dysfunction is denied. Entitlement to a higher rating of special monthly compensation (SMC) for loss of use of a creative organ is denied. REMANDED The claims of entitlement to service connection for a right hip and leg disability, to include as secondary to the service-connected left hip disability, and to an increased rating for ischemic heart disease (IHD) are remanded. FINDINGS OF FACT 1. The Veteran’s TBI with cognitive and speech impairment with PTSD has not manifested as severely impaired memory, attention, concentration, or executive function; severely impaired judgment; consistent disorientation; severely decreased motor activity; severe impairment of visual spatial orientation; complete inability to communicate; persistent altered state of consciousness; or resulted in total occupational and social impairment. 2. The Veteran’s diabetes mellitus requires insulin and restricted diet but does not require regulation of activities. 3. The Veteran’s peripheral neuropathy of the right upper extremity has manifested as mild incomplete paralysis of the nerves for the entire pendency of the claim. 4. The Veteran’s peripheral neuropathy of the left upper extremity has manifested as mild incomplete paralysis of the nerves for the entire pendency of the claim. 5. The Veteran’s erectile dysfunction is productive of loss of erectile power but does not manifest as deformity of the penis. 6. A higher rating for SMC for loss of creative organ is not provided. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 70 percent for TBI with cognitive and speech impairment with PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Codes 9304-8045, 9411 (2018). 2. The criteria for a rating greater than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913 (2018). 3. The criteria for a 20 percent rating for peripheral neuropathy of the right upper extremity from November 18, 2009 to May 11, 2016 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8513 (2018). 4. The criteria for a rating greater than 20 percent for peripheral neuropathy of the right upper extremity have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8513 (2018). 5. The criteria for a 20 percent rating for peripheral neuropathy of the left upper extremity from November 18, 2009 to May 11, 2016 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8513 (2018). 6. The criteria for a rating greater than 20 percent for peripheral neuropathy of the left upper extremity have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8513 (2018). 7. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522 (2018). 8. An increase in SMC based on the loss of use of a creative organ is not warranted as a matter of law. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to March 1971 and from July 1986 to September 1988, with service with the Army National Guard from January 1983 to November 1985. These matters come before the Board of Veterans’ Appeals (Board) from October 2010 and January 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Important for this entire case, the Board observes that the Veteran had a total disability rating based on individual unemployability from September 1988 to May 2010 and has had a 100 percent rating for his service connected disabilities since May 10, 2010. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. TBI Residuals The Veteran seeks a rating greater than 70 percent for his TBI with cognitive and speech impairment with PTSD, which has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 9304-8045. Hyphenated diagnostic codes are used when rating a disability under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Diagnostic Code 9304 concerns major or mild neurocognitive disorders due to traumatic brain injury. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from a traumatic brain injury (TBI) and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical (including neurological). Each of these areas of dysfunction may require a separate evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. A cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent rating is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The current version of Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, VA is not to assign more than one rating based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe,” which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The Board observes that the Veteran has separate ratings for headaches, loss of taste, loss of smell, and expressive aphasia. Therefore, these residuals cannot be considered when rating the overall impairment of TBI residuals under the table. When considering the impairment attributed to all of the other residuals of TBI, the Board cannot find that a rating greater than 70 percent is warranted. As noted above, the facet with the highest level of impairment determines the assigned rating. In this case, at no time during the appeal has the Veteran’s residuals resulted in total impairment in any one facet. Total impairment is provided for the facets addressing memory, attention, concentration, executive function; judgment; orientation; motor activity; visuospatial orientation; communication; and consciousness. Testing has not shown, and the Veteran does not contend, that he has severe impairment of memory, attention, concentration, or executive function resulting in severe functional impairment. The August 2010 VA TBI examination report shows the Veteran reported moderate impairment of memory, attention, and concentration; however, testing showed no impairment. The August 2010 VA PTSD examination report shows he had concentration difficulties and somewhat poor tracking of conversation. The June 2014 VA TBI examiner noted mild impairment. The June 2016 VA PTSD examination report shows impairment of short and long term memory, such as retention of only highly learned material, while forgetting to complete tasks. The examiner stated that the Veteran’s memory was spotty and his concentration was poor. The July 2016 VA TBI examination report shows the Veteran reported problems with his short-term memory. The examiner indicated that the Veteran’s symptoms related to this facet had worsened since 2000; however, the examiner stated that the symptoms resulted in only mild impairment of memory, attention, concentration, or executive functions resulting in mild impairment. Based on the available evidence, at most, the Veteran’s symptoms have caused mild to moderate functional impairment but have not been of the severity to cause severe functional impairment. Thus, a total rating is not warranted for this facet. Regarding judgment, a total rating is not warranted under this facet as the Veteran has not exhibited severely impaired judgment. According to the table for rating TBI residuals, for a total rating based on impaired judgment, the Veteran’s symptoms must cause severe impairment. For example, the Veteran would be unable to determine the appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. He has not asserted and treatment records do not support such a finding. See 38 C.F.R. § 4.124a, table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Here, the August 2010 VA TBI examination report shows that the Veteran consulted his wife when making decisions, indicating mild impairment of judgment. The August 2010 VA PTSD examination report shows the Veteran’s judgment was adequate. The June 2014 and July 2016 VA TBI examination reports show normal judgment. Based on the available evidence, at most, the Veteran has had mild impairment of judgment. Thus, a total rating is not warranted for this facet. Regarding orientation, a total rating is not warranted under this facet as the evidence does not show that the Veteran has been consistently disoriented to two or more of the four aspects of orientation, which include person, time, place, and situation. Id. The August 2010 VA TBI examination report shows the Veteran was disoriented to one aspect. The August 2010 VA PTSD examination report shows he was oriented to all aspects. The June 2014 VA TBI examination report shows the Veteran was unable to recall the date. The June 2016 VA PTSD examination report and July 2016 VA TBI examination report show orientation to all aspects. Based on the available evidence, the Veteran has had only occasional disorientation to one of the four aspects of orientation; therefore, a total rating is not warranted for this facet. Regarding motor activity, for a total rating, the evidence must show that the Veteran’s motor activity has been severely decreased due to apraxia. In this case, treatment records show that his motor activity has been normal throughout the entire pendency of the claim and he has not contended otherwise; thus, a total rating is not warranted for this facet. See VA TBI examination reports dated August 2010, June 2014, and July 2016. Regarding visual spatial orientation, a total rating is not warranted because the Veteran’s symptoms have not rendered him unable to touch or name his own body parts when asked by an examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. In this case, the August 2010 VA TBI examination report indicates that the Veteran usually got lost in unfamiliar surroundings and previously had some difficulty using GPS, which is the criteria listed for moderate impairment under the table for rating TBI residuals. The June 2014 VA examiner found that his visual spatial orientation was mildly impaired. The July 2016 VA examiner found moderate impairment, as the Veteran often got lost in unfamiliar surroundings and had to call his wife to help him reach his destination. Thus, based on the evidence, at most, the Veteran has had moderate impairment due to visual spatial orientation and as such, a total rating is not warranted for this facet. Regarding communication, for a total rating, the evidence must show complete inability to communicate either by spoken or written language, or both; to comprehend spoken or written language, or both; or to communicate basic needs. In this case, the Veteran does not contend and the medical evidence does not show complete inability to communicate or comprehend spoken or written correspondence. The August 2010 VA TBI examination report shows occasional impairment of communication. The June 2014 and July 2016 VA TBI examination reports show the Veteran was able to communicate by spoken or written language and to comprehend spoken and written language. Thus, a total rating is not warranted for this facet. Finally, a total rating is not warranted for consciousness. The facet for consciousness has only one rating, which provides a total level of impairment for persistently altered state of consciousness, such as vegetative state, minimally responsive state, or coma. The evidence does not show any of these states of consciousness. Thus, a total rating is not warranted for this facet. While a higher rating for TBI is not warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8045 and the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified,” the Board must also consider the diagnosis of PTSD and whether a separate rating is warranted. As noted above, when there is a diagnosed mental disorder, it is to be rated under 38 C.F.R. § 4.130. All mental disorders rated under 38 C.F.R. § 4.130 are evaluated using the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent evaluation is contemplated when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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; intermittently illogical obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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. Id. Symptoms listed in VA’s general rating formula for mental disorders 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The Board observes that the words “slight,” “moderate” 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The record includes Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Given the procedural posture of this appeal, the DSM-5 applies. See 80 Fed. Reg. 14308 (Mar. 19, 2015) (DSM-5 applies to claims received by VA or pending before the agency of original jurisdiction on or after August 4, 2014). The United States Court of Appeals for Veterans Claims (Court) noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, U.S. Vet. App. No. 16-1208 (February 23, 2018). The Board points out that the Veteran had a separate 10 percent rating for PTSD from November 18, 2009 until December 3, 2014, at which time PTSD was grouped with the TBI residuals. The elimination of the separate rating for PTSD as of December 2014 did not reduce the Veteran’s overall combined rating, which was 90 percent. The Board considered whether a higher separate rating was warranted from November 18, 2009 to December 3, 2014; however, the frequency, severity, and duration of the Veteran’s symptoms during this period were mild. In August 2010, the VA examiner diagnosed PTSD and cognitive disorder due to TBI. The examiner stated that the PTSD symptoms included weekly dreams, avoidance of war-related materials and conversations, some withdrawal and dissatisfaction in relationships, decreased interests, startle response, increased irritability, and some hypervigilance. The examiner observed that his concentration fluctuated. The examiner stated that if only PTSD symptoms were considered, his symptoms would be mild. Based on the VA examination, the Board cannot find that the frequency, severity and duration of the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the VA examination report does not support the assignment of a higher rating for this period. The Board considered the September 2009 VA mental health note and symptoms reported therein. The treatment record shows diagnoses of PTSD and dementia due to head trauma; however, the provider did not indicate which symptoms were attributable to PTSD or indicate the occupational and social impairment due solely to PTSD symptoms. As such, the treatment record does not support the assignment of a rating greater than 10 percent between November 18, 2009 and December 3, 2014. Despite the August 2010 examiner’s findings, the October 2014 and June 2016 VA examiners found that the Veteran’s PTSD symptoms and TBI residuals were intertwined and could not be differentiated from each other. As such, a separate rating is not warranted for PTSD based on these examination reports. Regardless, even if the Board were to rate all of the Veteran’s TBI residuals under the General Rating Formula for Mental Disorders, a total rating would not be warranted as the evidence does not show that the residuals were of the frequency, severity, and duration to cause total occupational and social impairment. The October 2014 VA examination report shows the Veteran was married to his wife of over 30 years and at times felt irritability towards her over petty items. He lived with her and two of his adult children. He had strong relationships with them and satisfactory relationships with his two other children. Once a year he went hunting and camping with friends. He spent his time working on his home, watching television, swimming, and working on the lawn. His family would not let him on the roof due to his dizzy spells. He could perform activities of daily living. He described irritability and stated that he would confront people if he was upset. He had combat related dreams and his sleep was variable. He had concentration problems. He denied having suicidal thoughts. His symptoms included avoidance behaviors related to combat trauma, lack of interest or participation in activities, persistent inability to experience positive emotions, irritable behavior and angry outbursts, concentration problems, anxiety, and chronic sleep impairment. The examiner stated that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. The June 2016 VA examination report shows that the Veteran continued to endorse memory and concentration problems as well as anxiety, irritability and anger outbursts, and sleep disturbance. Other symptoms included depressed mood, hypervigilance, impairment of short and long term memory, and inability to establish and maintain effective relationships. He tended to stay home and felt increasingly isolated. He rarely saw his friends. The examiner indicated that the Veteran’s memory was spotty and his concentration was poor. The examiner found that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. Again, the October 2014 and June 2016 VA examiners found that the Veteran’s PTSD symptoms were intertwined with the TBI symptoms to such an extent that the examiners could not differentiate symptoms attributable to each disability. Therefore, the Board has considered whether a rating greater than 70 percent is warranted for TBI residuals under the General Rating Formula for Mental Disorders. Unfortunately, the frequency, severity, and duration of the Veteran’s symptoms do not cause total occupational and social impairment. Notably, all of the VA examiners found that the Veteran’s PTSD symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. This finding warrants only a 10 percent rating under the General Rating Formula. However, the examiners’ findings are not binding in the Board. In this case, the Board finds that his mild to moderate memory and concentration problems, impaired impulse control, and inability to establish and maintain effective relationships warrant a 70 percent rating for occupational and social impairment with deficiencies in most areas. Unfortunately, the evidence does not support a finding of total occupational and social impairment and as such, a total rating is not warranted for TBI with cognitive and speech impairment with PTSD when rating the residuals under the General Rating Formula for Mental Disorders. Consequently, based on the foregoing, the Veteran’s claim for an increased rating for TBI with cognitive and speech impairment with PTSD must be denied. 2. Diabetes Mellitus The Veteran seeks a disability rating greater than 20 percent for his diabetes mellitus, which has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7913. Under this diagnostic code, which specifically addresses evaluation of diabetes mellitus, a 20 percent evaluation is assigned where diabetes requires insulin and restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent evaluation is assigned where diabetes requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent evaluation is assigned where the disease requires 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 100 percent evaluation is assigned where diabetes requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 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. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. “Regulation of activities” is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as “avoidance of strenuous occupational and recreational activities.” Id. See also 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). Medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Further, in light of the conjunctive “and” in the criteria for a 40 percent disability rating under Diagnostic Code 7913, all criteria must be met to establish entitlement to a 40 percent rating. See, e.g., Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by “and”). Upon review of all the evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s service-connected diabetes mellitus does not more nearly approximate a rating in excess of 20 percent for the entire rating period on appeal. During the January 2010 VA examination, the Veteran reported that his blood sugar was more difficult to control and required insulin and oral hypoglycemic medication. The examination report shows that he was instructed to follow a restricted or special diet but was not restricted in his ability to perform strenuous activities. He had no history of episodes of hypoglycemia reactions or ketoacidosis. The examiner noted that the Veteran was unable to participate in any sporting or recreational activities due to his head injury and heart condition. Further, the Veteran did little driving, tended to get fatigued in the afternoons, and needed oxygen after walking 400 yards. However, the examiner indicated that these limitations were unlikely related to diabetes. Similar findings were noted in the July 2014 and May 2016 VA examination reports. VA treatment records do not indicate that the Veteran has had to regulate activity due to his diabetes. The Board has considered the Veteran’s assertions that his condition requires restriction of activity. Specifically, in his August 2011 notice of disagreement, he indicated that he was tired all the time and limited with how long he could participate in house or yard work, camping, and hiking. He stated that he could not climb ladders due to numbness in his fingers. However, as noted above, the VA examiners found that his diabetes did not require regulation of his activities. While he reported fatigue and limited ability to participate in certain activities during the January 2010 examination, the examiner attributed his physical limitations to other service-connected disabilities. Further, regarding his report of inability to climb ladders due to numbness in his fingers, his symptoms have been considered in the ratings for peripheral neuropathy of the upper extremities. Based on the evidence, the Board cannot find that the Veteran’s diabetes mellitus has required insulin, restricted diet, and regulation of activity. All three criteria must be present to warrant a rating greater than 20 percent. Absent evidence that the Veteran’s activities required regulation, a higher rating cannot be granted for any period. The appeal is denied. 3. Peripheral Neuropathy, Upper Extremities The Veteran seeks increased ratings for peripheral neuropathy affecting the right median and ulnar nerves, which was rated non-compensable from November 18, 2009 to May 11, 2016 and 20 percent disabling thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8513. The Veteran also seeks increased ratings for peripheral neuropathy affecting the left radial, median, and ulnar nerves, which was rated non-compensable from November 18, 2009 to May 11, 2016 and 20 percent disabling thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under Diagnostic Code 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups in the major or minor extremity. 38 C.F.R. § 4.124a. Moderate neuropathy warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. Severe neuropathy warrants a 70 percent evaluation for the major extremity, and a 60 percent evaluation for the minor extremity. With complete paralysis of all radicular groups in the major extremity, a 90 percent evaluation is assigned, and an 80 percent evaluation is assigned for the minor extremity. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type 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. 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. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes that the record reflects the Veteran is right hand dominant; i.e., his right side is the major upper extremity. The Veteran underwent several VA examinations during the pendency of his claims. During the January 2010 VA examination, the Veteran had slight loss of pin prick and light touch sensation over the right upper extremity from the hand to the shoulder. In November 2010, the Veteran reported having numbness of his fingertips for the past 2 years, which occurred 2 to 3 times a week and lasted approximately 45 minutes. The diagnosis was peripheral neuropathy of the upper extremities. In July 2014, the Veteran reported moderate intermittent pain and paresthesia or dysesthesias of both upper extremities. The examiner indicated that the Veteran had upper extremity diabetic peripheral neuropathy but that none of the nerves manifested as incomplete or complete paralysis. The examiner noted that an EMG study from 2002 was normal. In May 2016, the Veteran reported having numbness and tingling of the hands for about 11 years. He described having sharp pain on the hands. The examiner indicated mild paresthesia and/or dysesthesias and mild numbness of both extremities. Reflexes at the brachioradialis were increased without clonus. For the right upper extremity, the examiner found mild incomplete paralysis of the median and ulnar nerves. For the left upper extremity, the examiner found mild incomplete paralysis of the radial, median, and ulnar nerves. Nerve conduction studies were normal. The examiner stated that the peripheral neuropathy did not impact the Veteran’s ability to work. In his August 2011 notice of disagreement, the Veteran reported that he had complained of numbness, weakness, cold, itching, and burning feelings in both hands and arms for as long as he had reported lower extremity symptoms. He indicated that the instances of numbness and cold had increased in frequency and duration. The Board has considered the evidence and notes that prior to May 2016, the Veteran’s symptoms were subjective and sensory. He complained of symptoms such as pain, numbness, and tingling and was diagnosed with peripheral neuropathy of the upper extremities. While the examiners did not find incomplete paralysis of the nerves, the rating criteria provide for the assignment of a rating based on “mild” symptoms when involvement is wholly sensory, as is the case here. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran’s symptoms of peripheral neuropathy of the right and left upper extremity warrant a 20 percent rating for each extremity for the entire pendency of the claim based on mild sensory impairment of all radicular groups. The Veteran’s subjective complaints have been considered in the evaluation of the upper extremity disabilities; however, the Board finds that the Veteran’s upper extremity disabilities are not manifested by symptoms that warrant higher ratings for any period. The Board finds that the Veteran is competent to report observations as they come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Board finds his statements to be credible. Indeed, the Board has resolved doubt, and finds that the Veteran’s upper extremity symptoms warrant a 20 percent rating under Diagnostic Code 8513 prior to May 2016. However, the evidence does not support a finding of moderate or severe incomplete paralysis of the nerves for any period. In summary, from November 18, 2009 to May 11, 2016, a 20 percent rating is warranted for right and left peripheral neuropathy, and to this extent, the appeal is granted. A rating greater than 20 percent is not warranted for either upper extremity for any period during the pendency of the claim, and to this extent the appeal is denied. 4. Erectile Dysfunction The Veteran seeks a compensable rating for erectile dysfunction (ED), rated under 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Under Diagnostic Code 7522, for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b. A footnote to Diagnostic Code 7522 also indicates that the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a). In this case, the Veteran is in receipt of SMC for loss of use of a creative organ. Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 7599-7522. VA treatment records and examination reports clearly document ED and loss of erectile power. In July 2014, a VA examiner found that the penis, testes, epididymis, and prostate were normal. Similarly, in a February 2018 examination report shows normal penis, testes, and epididymis. The prostate was not examined. In this case, the Veteran clearly has loss of erectile power. This fact is not in dispute. However, the evidence does not reveal any physical deformity of the Veteran’s penis. The requirement under Diagnostic Code 7522 of deformity of the penis ‘with’ loss of erectile power clearly means that both factors are required. The Veteran’s extensive VA and private treatment records do not document any penile deformity. Furthermore, while the Veteran asserts that his loss of erectile power should be considered a deformity, the criteria require a deformity in addition to loss of erectile power. Accordingly, there is no lay or medical support for a compensable evaluation for the Veteran’s erectile dysfunction under Diagnostic Code 7522, and the claim is denied. 5. SMC, Loss of Use of a Creative Organ The Veteran seeks a higher rating of SMC for loss of use of a creative organ. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k), 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. The amount of SMC for loss of use of a creative organ is a non-variable amount and is set by statute. 38 U.S.C. § 1114(k). Accordingly, the appeal must be denied as a matter of law. The benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Service Connection, Right Hip and Leg The Veteran seeks service connection for a right hip and leg disability as secondary to his service-connected left hip disability. The Veteran had a VA examination in June 2014. The examiner found no relationship between the service-connected left hip disability and the right hip and leg disabilities, finding that injury in one extremity rarely caused a major problem in the opposite extremity except when damage resulted in a significant shortening of the injured limb, to a degree more than 5 centimeters. The examiner based the finding on a research paper from 2005. In correspondence dated July 2018, the Veteran’s representative indicated that medical literature dated in 2011 shows that individuals with a leg length inequality of two centimeters or more were likely to develop osteoarthritis of the knee and hip. The representative indicated that the Veteran had a leg length discrepancy of 3 centimeters. Given the additional research, the Board finds that a remand is warranted to obtain an addendum opinion addressing whether the Veteran’s service-connected left hip disability has caused or aggravated the right hip or leg. 2. Increased Rating IHD In January 2011, the RO denied service connection for IHD and the Veteran appealed. In August 2014, the RO granted service connection; therefore, the appeal was granted in full. However, in an August 2014 VA Form 9, the Veteran indicated disagreement with the disability rating assigned, which constitutes a notice of disagreement with the August 2014 rating decision. The RO has not acknowledged the new appeal or issued a statement of the case (SOC). Therefore, a remand for issuance of a SOC is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Obtain VA treatment records dated since January 2018 and associate the records with the claims file. 2. Ask the July 2014 VA examiner or another appropriate clinician to review the claims file and provide an addendum opinion addressing the relationship, if any, between the Veteran’s service-connected left hip disability and right hip and leg disabilities. The examiner must be provided access to the electronic claims file and indicate review of the claim file in the addendum report. The examiner must provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right hip and/or leg disability that is due to or has been aggravated (permanently worsened) by his service-connected left hip disability. The examiner must provide a rationale in support of any opinion provided. In the rationale, the examiner should address the article cited to in the July 2018 argument, located at: https://healthtalk.unchealthcare.org/can-a-short-leg-cause-knee-or-hip-pain/. If the examiner cannot provide the requested opinions without resorting to speculation, the examiner must explain why this is so. Further, if the examiner cannot provide the requested opinions without first performing a physical examination of the Veteran, then an examination must be scheduled. (Continued on the next page)   3. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an increased rating for ischemic heart disease. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda G. Alderman