Citation Nr: 18158920 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-05 899A DATE: December 19, 2018 ORDER Entitlement to service connection for an eye disorder as secondary to service-connected diabetes mellitus, type II is granted. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) prior to December 20, 2017 is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 70 percent for PTSD from December 20, 2017 is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. REMANDED Entitlement to service connection for a stroke is remanded. FINDINGS OF FACT 1. The Veteran’s eye disorder diagnosed as diabetic retinopathy is proximately due to his service-connected diabetes mellitus, type II. 2. The preponderance of the evidence is against a finding that the Veteran’s current left and right knee disorders manifested in service, within one year of separation from service, or are etiologically related to his active duty service. 3. Prior to December 20, 2017, the evidence is at least in equipoise as to whether the Veteran’s PTSD was productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. From December 20, 2017, the Veteran’s PTSD has not been productive of total occupational and social impairment. 5. The Veteran’s diabetes mellitus, type II, requires the use of oral medication, a restricted diet, and insulin injections more than once a day; regulation of activities has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disorder as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 4. Prior to December 20, 2017, the criteria for an initial 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 5. From December 20, 2017, the criteria for an initial rating in excess 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9411. 6. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119; DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to March 1969. The Veteran initially filed a claim for macular degeneration. However, the record indicates he has had multiple diagnosed eye disorders during the claims period. Accordingly, the Board has recharacterized the claim more broadly as indicated above to afford the Veteran a more favorable review. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2018, an informal hearing was held before a Decision Review Officer (DRO) via phone conference with regard to the claims on appeal. A summary of the conference is in the record. In September 2018, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. When determining whether there is a current disability, pain alone is not sufficient. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for an eye disorder. The Veteran contends he has an eye disorder that is related to his service-connected diabetes mellitus, type II. See September 2018 Hearing Transcript. The Veteran has a current diagnosis for diabetic retinopathy, both eyes, as noted in the January 2014 VA examination report, and he is service-connected for diabetes mellitus. Thus, the first and second elements of secondary service connection are met. See 38 C.F.R. § 3.310(a). In making this determination, the Board recognizes that in a December 2017 VA examination, conducted to evaluate the Veteran’s diabetes mellitus, Type II, it was not indicated that he had diabetic retinopathy. However, the Board notes that this examination was not specific to the eyes and was conducted by a nurse practitioner. By contrast, the January 2014 VA examination was conducted by an ophthalmologist and specific to the eyes. Therefore, the Board finds the January 2014 VA examination to be more probative with respect to the diagnosis of diabetic retinopathy. Thus, the remaining issue for consideration is whether a nexus exists between the Veteran’s eye disorder and his service-connected diabetes mellitus, type II. The Board finds that it does. In pertinent part, in the January 2014 VA examination, the VA examiner diagnosed bilateral mild non-proliferative diabetic retinopathy and opined that the Veteran’s diabetic retinopathy was caused by his diabetes. There are no contrary etiological opinions of record. In light of the foregoing, the Board finds that entitlement to service connection for an eye disorder as secondary to diabetes mellitus, type II is warranted. 2. Entitlement to service connection for a left and right knee disorders. Initially, the Board notes that, although certain service treatment records appear to be missing, the Agency of Original Jurisdiction (AOJ) contacted the Veteran regarding these missing records and presented him with an opportunity to submit them. See July 2012 Report of General Information. The Veteran informed the AOJ that he had records to submit and either that same day or the next, submitted copies of his service treatment records (discussed directly below). In the April 2018 DRO hearing, the Veteran was informed about the available service treatment records regarding his knees and he indicated he had no further evidence to submit. Therefore, the Board is satisfied that VA’s duty to assist has been met with respect to these issues. The Veteran contends that his left and right knee disorders had their onset during active duty service. Specifically, he indicated that his right knee was injured in a truck accident, while he was stationed in Vietnam and his left knee was injured due to operating a forklift. See October 2012 VA Examination report and December 2009 VA Treatment records. The evidence of record shows that the Veteran has current left and right knee disorders. See December 2009 VA Treatment records and October 2012 VA Examination report. Service treatment records also show that, in August 1968, the Veteran was treated for right knee pain after falling off a truck and striking his knee. Moreover, as previously indicated, the Veteran indicated that his left knee problems were related to his operation of a forklift and using his left leg to stop it. See December 2009 VA Treatment records. As such, the Board finds that the evidence is at least in equipoise as to whether the requirements of Shedden elements (1) and (2) are met. With respect to the final element of the Shedden analysis, nexus, the Board finds that it is not met, as the competent and credible evidence of record does not establish that a nexus exists for either the left or right knee. In that regard, in October 2012, the Veteran underwent a VA examination to assess the etiology of his left and right knee disorders. The Veteran reported that he injured his right knee in a truck accident and had no treatment for his knee until 2003. The examiner found that the Veteran had bilateral knee degenerative/traumatic arthritis and opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran was only seen one time for a right knee problem in service and his first post-service complaint was in 2003, 35 years after service. The examiner also indicated that there was no history of an injury to the left knee and no evidence of a chronic ongoing condition associated with military service. There are no contrary medical opinions of record. The record also does not establish a finding that the Veteran’s left and right knee disorders manifested within one year of his separation from service or that there was continuity of relevant symptomatology following the Veteran’s military service. See 38 C.F.R. § 3.303(b). Chiefly, on the Veteran’s March 1969 separation medical history report, he reported no knee problems. The Veteran’s postservice treatment records also show that he was not treated for any knee-related complaints until many years after his separation from service. The Board acknowledges that although the Veteran testified that he received treatment and his knees were sore after he got out of service, this statement is contradicted by his March 1969 denial of knee problems and his statement during the December 2012 VA examination, that he did not receive treatment until 2003, 35 years after service. See September 2018 Hearing Transcript. As such, the Board finds that the Veteran’s March 1969 denial of knee problems carries the greater probative weight regarding whether there was a continuity of relevant symptomatology. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for left and right knee disorders. As the preponderance of the evidence is against these claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for left and right knee disorders is denied. 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. § 4.1. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider 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. 38 C.F.R. §§ 4.1, 4.2; 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); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess 30 percent prior to December 20, 2017 and in excess of 70 percent therefrom for PTSD. The Veteran was initially assigned a 30 percent rating at the time of his award of service connection for PTSD. See May 2011 Rating Decision. After initiating an appeal of that initial rating, in a January 2018 rating decision, the Veteran’s rating for PTSD was increased from 30 percent to 70 percent, effective December 20, 2017, the date of the Veteran’s VA examination. This increase during the appeal did not constitute a full grant of the benefit sought. Thus, the Veteran’s claim for an increased initial evaluation for PTSD remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran’s PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 30 percent is warranted for a mental disorder that results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A rating of 50 percent is warranted for a mental disorder that results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent is warranted for a mental disorder that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In March 2011, the Veteran underwent a VA examination to assess his PTSD. He reported that he had been arrested a couple of times for fighting. He also reported that he had road rage and got in physical fights at work; however, he had no problems in his relationship with family members. The examiner documented symptoms of depression, irritability and angry outbursts, distressing dreams, concentration problems, hypervigilance, strong startle response, intrusive thoughts, sleep impairment, and anxiety. The examiner opined that the Veteran had moderate symptoms with moderate impairment in social, mood, and recreational functioning. The examiner also indicated that the Veteran’s psychiatric problems did not prevent him from working. In October 2012, the Veteran underwent another VA examination to assess his PTSD. He reported that he lived with his wife; however, he fought with her and yelled at the children. The Veteran also reported that the medication he had been prescribed made him worse, so he discontinued it. The examiner documented symptoms of depressed mood, anxiety, less interest in activities, feelings of worthlessness, poor concentration, thoughts of homicide when angered, road rage, nightmares, chronic sleep impairment, hypervigilance, exaggerated startle response, and irritability or outbursts of anger. The examiner also indicated that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning to require continuous medication. On January 2014 VA examination, the Veteran reported that he was easily irritated and snapped, he had road rage, and had been jailed twice for assault. The examiner documented symptoms of reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, impaired judgment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner opined that such symptoms would result in occupational and social impairment with reduced reliability and productivity. The Veteran’s PTSD was most recently evaluated by VA on December 20, 2017. The Veteran reported that he had frequent road rage, got in shouting matches with strangers, and, prior to his retirement in 2007, he had difficulty getting along with coworkers. He also reported that socially, he did not have any friends and could not get along with family members. The examiner documented symptoms of depressed mood, anxiety, persistent delusions and hallucinations, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, flattened affect, impaired judgment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner opined that such symptoms would result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The examiner also noted that the Veteran had difficulty maintaining concentration and focus on work over a period of time, had difficulty accepting supervision or receiving instructions without becoming angry, had difficulty functioning around others, could not tolerate being around others in any setting for more than a few minutes, and was usually fatigued, making concentration and focus on work assignments difficult. VA treatment records document medication therapy for psychiatric problems and persistent symptoms of sleep difficulty, irritability and anger dyscontrol, thoughts of hurting people, depressed mood, difficulty concentrating, hypervigilance, nightmares, and intermittent auditory and visual hallucinations. See September and November 2009, March and April 2010, April 2012, and June 2013 VA Treatment records. At one point, the Veteran attended anger management training classes to deal with his anger. See November 2009 VA Treatment records. Recent VA treatment records also document the Veteran’s reports that he has lived with his wife for over 40 years, has a good social/family support system, remains in contact with his children and grandchildren, and celebrates holidays with his family. See May and November 2017 VA Treatment records. The Veteran testified at the September 2018 Board hearing that he gets mad easily, has road rage, feels like harming people, and just snaps. He also testified that he talks with family members and goes to family gatherings. However, he does not have friends outside of his family. In light of the foregoing, for the period prior to December 20, 2017, the Board finds that the evidence is at least in equipoise as to whether the criteria for a higher initial 70 percent rating are met. At all relevant times, the Veteran demonstrated impaired impulse control consisting of irritability, anger, and violent outbursts that severely affected his ability to function occupationally and socially. Of note, the Veteran indicated he had gotten into physical altercations at work, had severe road rage, and got into shouting matches with strangers. The Board acknowledges that, even though the Veteran has not demonstrated all of the symptoms associated with the 70 percent rating criteria, not all of the demonstrative symptoms must be shown to warrant a higher rating. See Mauerhan, 16 Vet. App at 442-43. For example, there is little or no clinical evidence of suicidal or homicidal ideation or neglect of personal hygiene. However, the Board finds that the Veteran’s impaired impulse control and other symptoms, have been of the frequency, severity, and duration to have caused the occupational and social impairment equivalent to a 70 percent rating. See id.; Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Board has considered whether a higher rating is warranted and finds that, for the entirety of the appeal period, the criteria for a higher initial 100 percent rating are not met. Although the Veteran displayed some symptoms associated with a higher rating, such as audio/visual hallucinations, the Board has determined that the severity of the documented symptoms do not equate to total occupational and social impairment. Moreover, while it appears that the Veteran may have total occupational impairment based on the findings of the December 2017 VA examiner, the Board emphasizes that a 100 percent rating requires total social impairment in addition to total occupational impairment. In that regard, although the December 2017 VA examiner indicated that the Veteran could not get along with family, the VA treatment record and the Veteran’s own testimony shows that he has been married for at least 40 years, has a good social/family support system, and is close enough with his family to celebrate holidays and attend gatherings with them. Accordingly, total social impairment is not shown and a higher initial 100 percent rating is not warranted. 4. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. Diabetes mellitus is rated pursuant to DC 7913, which warrants the assignment of a 20 percent rating if insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, are required. A 40 percent rating is assigned if insulin, restricted diet, and regulation of activities are required. A 60 percent rating is assigned if insulin, restricted diet, and regulation of activities are required, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. 38 C.F.R. § 4.119, DC 7913. The definition of “regulation of activities” in the criteria for a 100 percent rating, that is, the “the avoidance of strenuous occupational and recreational activities,” also applies to the “regulation of activities” criterion for a 40 or 60 percent rating under DC 7913. In addition, the criterion of “regulation of activities” requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2011). In November 2010, the Veteran underwent a qualified VA examination to assess the severity of his diabetes mellitus, type II. The Veteran reported that he required hospital treatment 10 times and experienced hypoglycemia reactions requiring hospital treatment on average 10 times per year at VA hospital. He also reported that he had ketoacidosis within the past year, that required 10 visits to a diabetic care provider. The VA examiner documented treatment consisting of oral medication and insulin administered 2 times daily. There was no functional impairment from this condition. In April 2011, the Veteran underwent a VA examination to assess his diabetes mellitus, type II. The Veteran reported that he had never been hospitalized for ketoacidosis or hypoglycemia. The examiner documented treatment consisting of oral medication, insulin (more than once daily), and restricted diet. The Veteran was not restricted in his ability to perform strenuous activity. There were no documented episodes of hypoglycemia or ketoacidosis. In January 2014 and December 2017, the Veteran underwent additional VA evaluations for his diabetes mellitus. The VA examiners both documented treatment consisting of a restricted diet and insulin more than 1 injection per day. The Veteran did not require regulation of activities as part of medical management. He also required less than 2 visits per month to a diabetic care provider for episodes of ketoacidosis and hypoglycemia. There were no episodes of ketoacidosis and hypoglycemia requiring hospitalization in the past 12 months. There was peripheral neuropathy due to the Veteran’s diabetes mellitus. VA treatment records indicate that medication management for the Veteran’s diabetes mellitus has consisted of oral medication (Metformin) and insulin. He was also encouraged to monitor his glucose, exercise, and lower his sugar intake. The Veteran testified at the September 2018 Board hearing that he saw a doctor every six months for diabetes mellitus and sometimes had to go to the hospital. He also testified that doctors have told him that he has to change his activities due to diabetes mellitus. Upon further questioning, however, the Veteran clarified that, when the doctors tell him to do certain things, he means that they tell him to exercise. He stated further that he walks around the mall and lifts a few weights. Based on a thorough review of the evidence of record and the guiding principles above, the Board finds that the criteria for a rating in excess of 20 percent are not met. Chiefly, although the medical evidence establishes that the Veteran’s diabetes mellitus has required oral medication, daily use of insulin, and a restricted diet, there has not been restriction/regulation of activity for diabetic control. In fact, the Veteran was encouraged to exercise as a part of his treatment for diabetes. Accordingly, the Board finds that during the entirety of the appeal period the Veteran has not required regulation of activities. Such is required for the assignment of the next higher 40 percent rating. 38 C.F.R. § 4.119, DC 7913. The Board notes that additional separate ratings for diabetes related disabilities are not warranted. Chiefly, the Veteran is already in receipt of separate ratings for bilateral upper and lower extremity peripheral neuropathy and he is now service-connected for diabetic retinopathy (as of the date of this decision). The Board recognizes the Veteran has physical restrictions as a result of his service-connected peripheral neuropathy, which is secondary to his diabetes mellitus. However, these conditions are separately rated and the resulting physical restrictions pertain to functional limitations are contemplated by the governing diagnostic code criteria and corresponding regulations. As the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran’s diabetes mellitus, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a stroke is remanded. The Board’s review of the record indicates that outstanding, relevant non-VA medical records exist but have not been obtained or requested. In pertinent part, at the April 2018 DRO hearing and September 2018 Board hearing, the Veteran indicated that there were outstanding hospital treatment records regarding his stroke. The Board emphasizes that these missing private treatment records are highly pertinent to the Veteran’s claims on appeal. Accordingly, remand is warranted for additional development to attempt to obtain these records. See 38 C.F.R. § 3.159(c)(2); Massey v. Brown, 7 Vet. App. 204 (1994). The matters are REMANDED for the following actions: 1. With the Veteran’s assistance, undertake additional appropriate action to obtain his private hospital treatment records, as indicated in his April 2018 DRO Hearing and September 2018 Board Hearing. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. Undertake any additional development deemed necessary after the above development is completed, if any, and readjudicate the claim. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel