Citation Nr: 1807054	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  05-26 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for tinnitus. 

3.  Entitlement to service connection for a dental condition, claimed as secondary to service-connected diabetes mellitus, type II.  

4.  Whether new and material evidence had been received to reopen a claim for service connection for degenerative joint disease (DJD) of both knees. \

5.  Entitlement to an initial disability rating greater than 30 percent for post traumatic stress disorder (PTSD) from January 22, 2004, until November 17, 2008, and to rating greater than 70 percent thereafter. 

6.  Entitlement to an increased rating for diabetes mellitus, type II, rated 20 percent disabling.  

7.  Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower extremity.  

8.  Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity.  

9.  Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the left upper extremity.  

10.  Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the right upper extremity.  


REPRESENTATION

Appellant represented by:	Robert P. Walsh, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant, appellant's wife, E.F., and D.S.


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran served on active duty from July 1966 to February 1969.  He received numerous awards, including the Purple Heart, the Combat Infantry Badge, the Vietnam Service Medal and the Vietnam Campaign Medal.  He served in Vietnam from December 1967 to September 1968. 

This matter has come before the Board of Veterans' Appeals (Board) on appeal from July 2004 and August 2004 rating decisions of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). 

Because of the procedural complexity of this case, the extended procedural history of this case will be set forth. 

In the July 2004 rating decision, the RO granted service connection for PTSD and assigned an initial 10 percent rating, both effective from January 22, 2004.  Service connection was denied for hypertension and for degenerative joint disease (DJD) of both knees but adjudication of claims for service connection for hearing loss and tinnitus was deferred.  An August 2004 rating decision denied service connection for bilateral hearing loss and tinnitus.  

After filing a March 2005 notice of disagreement (NOD), two separate statements of the case (SOCs) were issued in July 2005 which addressed the initial 10 percent rating for PTSD and denials of service connection for hypertension, hearing loss, and tinnitus.  The appeal was perfected by filing a substantive appeal (via VA Form 9) in August 2005. 

In December 2005 a copy of the Veteran's claim file was provided to his attorney, at the attorney's request. 

The Veteran and his wife, as well as E.F. a friend, testified at a March 2006 hearing before a Decision Review Officer.  A transcript of that hearing is on file.  At that hearing photographs, a military unit history, and report of an October 2005 evaluation by a private licensed psychologist were submitted into evidence. 

In May 2006, the RO increased the disability rating for PTSD to 30 percent, effective January 22, 2004.  The Veteran continues to seek a higher rating.  AB v. Brown, 6 Vet. App. 35 (1993).  

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2006.  A transcript of the hearing is associated with the claims file.  During the hearing, he submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304.  At the hearing the issues were described as service connection for bilateral "hernia" [hearing loss], tinnitus, hypertension claimed as secondary to service-connected diabetes mellitus type II, and an increased rating for PTSD, then rated 30 percent.  On the day of the hearing the Veteran's attorney filed a pleading requesting a copy of the transcript of the December 2006 travel Board hearing.  

A September 2007 Board decision denied service connection for bilateral hearing loss and tinnitus and remanded the claims for service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, type II, and the claim for an initial rating in excess of 30 percent for PTSD for development. 

The September 2007 Board denial of service connection for bilateral hearing loss and tinnitus was appealed to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to Joint Motion for Remand (JMR), the Court's February 2009 vacated the 2007 Board denials of service connection for bilateral hearing loss and tinnitus and remanded those issues because the Veteran's attorney had not been provided a copy of the transcript of the December 2006 travel Board hearing.  The JMR noted that this was because the transcript was "replete" with instances where the transcriber had typed "inaudible."  

In an October 2007 rating decision the RO granted service connection for (1) peripheral neuropathy of the left lower extremity, (2) peripheral neuropathy of the right lower extremity, (3) peripheral neuropathy of the left upper extremity, and (4) peripheral neuropathy of the right upper extremity.  Each was assigned an initial 10 percent disability rating, all effective from August 30, 2006.  An evaluation in excess of 20 percent for diabetes mellitus, type II, was denied, and service connection for a dental condition (periodontal disease) was also denied.  The Veteran and his attorney were notified of this decision by RO letter dated October 18, 2007. 

A letter from the Veteran's attorney received October 15, 2008, constituted an NOD to the October 2007 rating decision. 

In January 2009 the Veteran's attorney reasserted that service connection was being sought for DJD of both knees. 

In January 2009 a supplemental statement of the case (SSOC) was issued addressing only the issue of entitlement to a rating in excess of 30 percent for PTSD. 

A January 2009 rating decision granted service connection for hypertension, as secondary to service-connected diabetes mellitus, type II, and assigned an initial noncompensable disability rating, effective September 24, 2003.  This was a complete grant of that benefit and, thus, that claim is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 

The January 2009 rating decision also denied entitlement to an earlier effective date for service connection for PTSD. 

An April 2009 SOC addressed the issues of service connection for a dental condition (periodontal disease), and increased ratings for the service-connected diabetes and increased ratings for each of the service-connected diabetic peripheral neuropathy disorders of the extremities.  

A May 2009 rating decision grant an increased in the 30 percent rating for PTSD to 70 percent, effective November 18, 2008 (date of a private psychosocial evaluation), and also granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) and established basic eligibility to Dependents' Educational Assistance (DEA), both from November 18, 2008.  Reopening of a claim for service connection for DJD of both knees was denied.  The Veteran and his attorney were notified of this decision by RO letter dated June 15, 2009. 

A May 2009 SSOC addressed the issue of entitlement to a rating greater than 70 percent for PTSD. 

In June 11, 2009, the Veteran's attorney filed VA Form 9 in response to the SOC of April 2009. 

Also in June 2009 the Veteran's attorney filed an NOD to the May 2009 RO denial of reopening of claims for service connection for DJD of both knees.  It was stated that "[r]eview of the claim by a Decision Review Officer was requested, as was an "at once hearing ... regarding the knee disability."  

By RO letter dated July 15, 2009, the RO informed the Veteran (and the Veterans of Foreign Wars) of the Veterans Claims Assistance Act of 2000 (VCAA) as to an application to reopen claims for service connection for bilateral hearing loss and tinnitus, noting that those claims had been denied by the Board in September 2007.  

A September 2009 rating decision denied reopening of claims for service connection for bilateral hearing loss and tinnitus, as new and material evidence had not been submitted.  

An RO hearing scheduled in January 2009 was rescheduled, at the request of the Veterans' attorney, for March 9, 2010, and although notified of this by RO letter dated February 23, 2010, the hearing was not attended.  

An SOC was issued in March 2010 addressing service connection for degenerative joint disease, bilateral knees, and in which it was noted that the Veteran had been notified of the denial by RO letter of June 15, 2009, and that an NOD had been received on June 25, 2009.  

In response to the March 2010 SOC, the Veteran's attorney submitted VA Form 9 in May 2010, in which he requested a "BVA hearing at the local VA office."  It was stated that the appeal was to "all of the issues listed on the [SOC] and any [SSOC] that my local VA office sent to me."  

Here, because the September 2007 Board decision denying service connection for bilateral hearing loss and tinnitus was vacated by the Court, it is not final.  As a result, new and material evidence is not required to reopen those claims because they are still on direct appeal to the Board.  

The Board remanded the case in December 2010 to, in part, afford the Veteran the opportunity to testify at a hearing at the RO in Detroit, Michigan.  

Pursuant to the JMR and the December 2010 Board remand, in February 2011 the Veteran's attorney was provided a copy of the December 2006 hearing transcript.  

The Veteran and D. S. testified at another DRO hearing in March 2011, a transcript of which is of record.  

In July 2016 the Board remanded the case noting that although the case was remanded in December 2010 to afford the Veteran the opportunity to testify at a hearing at the RO in Detroit, Michigan, no such hearing has been conducted.  By letters in August 2015, February 2015, September 2015, November 2015, and February 2016 the Veteran was notified that he was place on a list for a hearing at the RO before a Veterans Law Judge (VLJ), commonly called a "Travel Board" hearing but that his attorney had not been so notified.  The case was remanded to ensure compliance with the December 2010 Board remand by contacting the Veteran's attorney and request that he acknowledge that he has received a copy of the transcript of the December 2006 travel Board hearing, and to schedule the Veteran for a Travel Board hearing, ensuring notice thereof to the Veteran's attorney.  

By letter of September 22, 2016, the Veteran's attorney was request to verify his representation (which was done in October 2016) and he received a copy of the December 2006 Board hearing transcript.  By RO letters of October 26, 2016, the Veteran and his attorney, each was informed that his attorney had not verified receipt of the 2016 Board hearing transcript and, so, a copy was being provided to the Veteran and to the attorney.  

In VA Forms 21-4140-1, Employment Questionnaires, the Veteran verified that, for purposes of continued receipt of a TDIU rating, he had not been employed for the 12 months preceding October 2016 and January 2018.  In December 2016 the RO informed the Veteran that his TDIU rating was continued.  

In March 2017 the Veteran and his attorney were notified that a Travel Board hearing was scheduled for May 1, 2017.  By letter dated April 10, 2017 the Veteran's attorney requested that the hearing be cancelled because the Veteran had a scheduling conflict and that the Veteran wished "to withdraw his request for a personal hearing.  As such, the [VLJ] may proceed with issuing a decision in this case."  

Also in April 2017 the Veteran's attorney requested a copy of the Veteran's complete claim file, including service treatment records, service dental records, service hospital records, and service personnel records, preferably in the form of electronic media.  In January 2018 the Veteran's attorney was provided a compact disc (CD) of the Veteran's entire VA claims folder. 

This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents).  Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records.  


FINDINGS OF FACT

1.  Bilateral hearing loss first manifested many years after service and any inservice acoustic trauma in combat and is unrelated to the Veteran's military service. 

2.  Tinnitus first manifested many years after service and any inservice acoustic trauma in combat and is unrelated to the Veteran's military service. 

3.  The Veteran does not have a dental disability resulting from combat wounds or service trauma and his claimed periodontal disease is not subject to service-connected compensation.  

4.  The Veteran was notified of a July 2004 rating decision which denied service connection for DJD of the knees but he did not appeal that decision and no additional service records have been received.  

5.  The evidence received since the July 2004 rating decision denying service connection DJD of both knees is not both new and material.  

6.  Prior to November 17, 2008 the Veteran's service-connected PTSD was manifested by anxiety, depression, sleep disturbance, and panic attacks for which he takes medication and has received treatment; and while he had impairment of his social life, he maintained his employment for many years; and his PTSD has not been manifested by significant memory impairment, impairment in ability to communicate, impairment in abstract thinking or in understanding complex commands. 

7.  Since November 17, 2008 the Veteran's service-connected PTSD has not been manifested by some impairment as to maintenance of personal hygiene but no gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others;; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

8.  Prior to May 6, 2015, the Veteran's diabetes mellitus was controlled with insulin and diet; but regulation of activities was not required; however, since May 6, 2015, regulation of activities is required but he had not had to see a diabetic care provider at least twice monthly and has not had any episodes of ketoacidosis or hypoglycemia requiring hospitalization.  

9.  The Veteran's diabetic peripheral neuropathy of the left lower extremity is not productive of more than mild impairment of the external popliteal, i.e., common peroneal, nerve.  

10.  The Veteran's diabetic peripheral neuropathy of the right lower extremity is not productive of more than mild impairment of the external popliteal, i.e., common peroneal, nerve.  

11.  The Veteran's diabetic peripheral neuropathy of the left upper extremity is not productive of more than mild impairment of the middle radicular nerve group.  

12.  The Veteran's diabetic peripheral neuropathy of the right upper extremity, affecting his dominant upper extremity, is not productive of more than mild impairment of the middle radicular nerve group.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 

2.  The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 

3.  The criteria for service connection for a dental disability are not met.  38 C.F.R. §§ 4.149, 17.120, and 17.123 (2017). 

4.  The July 2004 rating decision denying service connection for DJD of both knees is final.  38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.200, 20.302(a) and (b), 20.1103 (2017).

5.  The additional evidence received since the July 2004 rating decision service connection for DJD of both knees is not new and material for the purpose of reopening that claim.  38 C.F.R. § 3.156 (2017).  

6.  The criteria for an initial rating greater than 30 percent for PTSD from January 22, 2004, until November 17, 2008, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.21, 4.126, 4.130, Diagnostic Codes (DC) 9411 (2017).  

7.  The criteria for a rating greater than 70 percent since November 17, 2008 for PTSD are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.21, 4.126, 4.130, Diagnostic Codes (DC) 9411 (2017).

8.  The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, prior to May 6, 2015, are not met but a rating of 40 percent and no higher are met as of May 6, 2015.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7913 (2017).  

9.  The criteria for an initial rating greater than 10 percent for diabetic peripheral neuropathy of the left lower extremity are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8621 (2017).

10.  The criteria for an initial rating greater than 10 percent for diabetic peripheral neuropathy of the right lower extremity are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8621 (2017).

11.  The criteria for an initial rating of no greater than 20 percent for diabetic peripheral neuropathy of the left upper extremity are met.   38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8611 (2017).

12.  The criteria for an initial rating of no greater than 20 percent for diabetic peripheral neuropathy of the right upper extremity are met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8611 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development.  VA's duty to notify was satisfied by a letter in April 2004 as to the claims for service connection for hearing loss and tinnitus.  By letter in August 2007 the Veteran was provided notice of how to substantiate claims of service connection for dental disability, neuropathies of the extremities, and a rating for diabetes.  By letter in December 2008 he was provided notice as to the application to reopen the claim for service connection for disability of his knees.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dingess/Hartman, 19 Vet. App. at 473, 484-86, aff'd, 483 F.3d at 1311; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) and Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

By letter in May 2008 the Veteran was informed of how VA determines disability ratings, and also set forth the criteria for evaluating psychiatric disorders.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  See also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009).  As to the initial ratings for service-connected PTSD and neuropathies of the extremities, this appeal stems from the initial grants of service connection and, so, the statutory VCAA notice had served its purpose, and its application was no longer required.  See Dingess/Hartman, 19 Vet. App. at 473, 484-86, aff'd, 483 F.3d at 1311; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Veteran has not been afforded an examination in conjunction with his application to reopen a claim for service connection for DJD of the knees, even though this was requested by his attorney in January 2009.  Under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented.  38 C.F.R. § 3.159(c)(4)(iii).  

The Veteran, his wife, and a friend testified at a 2006 DRO hearing.  The Veteran and a friend, D. S. testified in support of his claims at a March 2011 DRO hearing, and the Veteran testified in support of his claims at a February 2008 Travel Board hearing before the undersigned VLJ.  The Veteran and his attorney have now been provided a transcript of that hearing, in compliance with the Court Order.  Also, the Veteran's attorney has been provided a complete copy of all records on file on several occasions, including as recently as January 2018.  Neither the Veteran nor his attorney has raised any issue(s) with respect to the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) and Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (duty to assist a hearings).  

The Board finds that all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible.  The evidence of record includes service medical records, VA and private medical records and reports of VA examinations addressing the etiology of the conditions for which service connection is claimed and the severity of the disabilities for which increased ratings are sought.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  The adequacy of the examinations and medical opinions obtained has not been challenged.  

The Veteran has not indicated he has any further evidence to submit to VA, or which VA needs to obtain.  Moreover, there has been substantial compliance with prior Board remands.  There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal.  All pertinent due process requirements have been met. 

Principles of Service Connection

Service connection is warranted for disability incurred or aggravated during active service or by application of certain rebuttable presumptions, or if proximately due to or aggravated by other service-connected disability or disabilities.  38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  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).  However, not every manifestation of joint pain or any cough, during service will permit service connection for arthritis or pulmonary diseases first shown as a clear-cut clinical entity at some later date.  38 C.F.R. § 3.303(b). 

A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including sensorineural hearing loss, tinnitus (as an organic disease of the nervous system) and arthritis, if the chronicity is shown as such in service or manifests to 10 percent or more within one year of service discharge, or, if there is continuity of symptomatology after service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  However, the use of continuity of symptoms to establish service connection is limited to only those diseases listed at 38 C.F.R. § 3.309(a), which includes sensorineural hearing loss, tinnitus (as an organic disease of the nervous system) and arthritis, and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition.  38 C.F.R. § 3.310.

38 C.F.R. § 3.385 provides that for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent.  

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. § 3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

Any competent lay evidence must be weighed to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009).  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered") and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service).

Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements opposing consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001).  

Bilateral Hearing Loss and Tinnitus

The July 1966 examination for service entrance was negative.  Audiometric testing at that time revealed hearing thresholds of 5 decibels in each ear at 500; 1,000; 2,000; and 4,000 Hertz (Hz).  There were no pertinent reports in an adjunct medical history questionnaire.  

The February 1969 examination for service separation was negative, and no testing of his hearing acuity, either by whispered voice, spoken voice or audiometric testing was done.  

A December 2003 VAOPT records shows that the Veteran denied any hearing problems.  A February 2004 VAOPT record shows that the Veteran complained of a constant ringing in his ears.  

VA clinical records in show that on audiology evaluation in March 2004 the Veteran reported decreased hearing sensitivity and tinnitus, bilaterally.  He reported a history of military noise exposure but denied a history of occupational noise exposure.  Audiometric testing revealed a bilateral sloping mild to severe sensorineural hearing loss. 

The Veteran was provided a VA audiology examination in June 2004, at which time the claim file was not available for review, which reflects that the Veteran had a hearing loss (by VA standards) and tinnitus.  In July 2004 a VA audiologist reviewed the evidence and opined that the disorders were unrelated to military service.  

At the March 2006 DRO hearing the Veteran testified that he was exposed to acoustic trauma during training and combat, without use of hearing protection, and he dated the onset of diminished hearing acuity and tinnitus to such events.  In his postservice jobs if he was exposed to loud noise he was required to wear hearing protection.  On the other hand, he had not use hearing protection in Vietnam in order to be alert to any possible dangers.  

At the March 2006 DRO hearing a service comrade attested that no one used hearing protection when in combat Vietnam in order to be alert to any possible dangers.  At the 2006 Travel Board hearing the Veteran testified that he did not use hearing protection while in Vietnam.  He had noticed the onset of diminished hearing acuity and tinnitus after being in combat in Vietnam.  The Veteran testified at the 2011 DRO hearing that he was exposed to acoustic trauma during training and in combat, which was corroborated by testimony of a service comrade, D. S., following which the Veteran noticed difficulty hearing and hearing a ringing sound.  

Based on the findings of a June 2004 VA audiological examination and July 2004 addendum the Hickson element (1) has been satisfied as to both claims.  Specifically, there is evidence of bilateral hearing loss which meets the threshold requirements of § 3.385 to be considered a disability there also is a confirmed diagnosis of tinnitus. 

As to the other Hickson elements, the STRs reveal no evidence of hearing loss or tinnitus.  Moreover, bilateral hearing loss was initially identified in 2004, over 35 years after active service.  There is no medical evidence indicative of bilateral hearing loss or tinnitus prior to 2004.  Accordingly, there is no evidence of hearing loss while in service or even within the one-year presumptive period after discharge for sensorineural hearing loss, specifically.  With respect to in-service injury, the record indicates that the Veteran was awarded the Combat Infantry Badge and the Purple Heart, which establish that he engaged in combat and, so, the his statements of traumatic noise exposure inservice are accepted as true. 

"The American Medical Association defines 'acoustic trauma' as '[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire.'  American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003).  An acoustic trauma can cause permanent hearing loss, but does not necessarily do so.  Id."  Reeves v. Shinseki, No. 2011-7085, slip op. at 10, footnote 7 (June 14, 2012 Fed. Cir.) (not selected for publication); 2012 WL 2105624 (C.A. Fed.).  

The Board has considered the articles and information submitted in behalf of the Veteran relative to noise exposure and hearing loss as well as tinnitus.  The Board concedes that the Veteran was exposed to acoustic trauma both in training and in combat during service.  Indeed, he has gone to great lengths to establish that many men in his unit were killed in combat, and the Board accepts this as fact.  However, this is not necessarily the same as having sustained the type of injury that causes chronic hearing loss or tinnitus, or both, and having resulting chronic disability.  In other words, even though he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including a sensorineural hearing loss and tinnitus, which were caused thereby.  The Veteran and his representative have not pointed to any such statutory or regulatory presumption to this effect, and the Board is aware of none.  Thus, while not disagreeing that the Veteran sustained acoustic trauma, under the circumstances which he has related, the Board rejects the notion that his current hearing loss, including a sensorineural hearing loss, and tinnitus should necessarily be conceded as being due to inservice acoustic trauma.  

Concerning the matter of a nexus to military service, such a matter is essentially medical in nature.  The record contains a VA medical opinion and two private medical opinions regarding whether the Veteran's hearing loss and tinnitus are related to his military service.  Specifically, a VA July 2004 medical opinion, which followed a June 2004 examination, and private examination reports in November 2006 and December 2014.  

Thus, the Board must weigh the probative value of these two competing medical opinions.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); and Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  After reviewing the claims file and service medical records, the VA examiner concluded that there was insufficient evidence to establish a nexus between the Veteran's bilateral hearing loss and tinnitus and his military service.  It was noted that the STRs showed that the Veteran denied any hearing or ear problems on his Report of Medical History for release from active duty.  Also, while the Veteran saw combat in Vietnam, he also reported an extensive history of occupational noise exposure in civilian life.  

The private audiologist (S.M.) reported that at an audiological evaluation in November 2006 the Veteran reported a history of noise exposure in the military.  That audiologist concluded that the Veteran's high frequency hearing loss was consistent with hearing loss due to noise exposure.  The audiologist observed that tinnitus was frequently associated with high frequency hearing losses.  A notation on the audiometric evaluation indicated that the claims file was not reviewed.  

Another private audiologist, associated with Connect Hearing, reported in December 2014 that the Veteran reported that he had first noticed hearing loss and tinnitus in boot camp following weapons fire, he participated in combat, and was not provided any hearing protection during service.  Current audiometric testing confirmed a sensorineural hearing loss.  The private audiologist opined that it was more likely than not that the current constant tinnitus and hearing loss were a result of his military career.  

The private audiologist's opinions were provided without review of the claims file.  More importantly, while there has been attempt to downplay the impact of the Veteran's postservice employment in an office environment, some of his past occupations did place at or near a noisy work environment.  Those private audiologists did not address the effect, if any, the Veteran's civilian occupational noise exposure had on his development of hearing loss or tinnitus, or both, and, indeed, there was actually no acknowledgment of any post-service noise exposure.  Equally significantly, no rationale was provided by those private audiologists.  From this it can only be concluded that the opinions were based solely on the Veteran's report of noise exposure in service and the contemporaneous onset of tinnitus and hearing loss.  However, this is not corroborated by contemporaneous clinical records, a matter discussed in greater detail below.  

On the other hand, the July 2004 VA audiologist, after reviewing the evidence which was not available to the June 2004 VA examiner, provided a rationale for his opinion that the conditions are unrelated to service.  Specifically, that the STRs were negative for hearing loss and tinnitus coupled with the Veteran's extensive postservice history of occupational noise exposure, in one postservice job in a noisy environment in which he did not use hearing protection, although he had in other postservice jobs.  Also, and while not dispositive alone, the VA opinion was rendered after a review of the Veteran's entire medical history, in addition to containing reasons and bases.  When this opinion is view in light of the evidentiary record as a whole demonstrating no hearing loss or tinnitus for over 34 years after service, the Board finds that the VA examiner's opinion should be given greater probative value.  

In Hensley v. Brown, 5 Vet. App. 155, 159 (1993) the Court stated that: 

[Applicable VA regulations do] not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. . . . Therefore, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 

Id. at 159-60.  

The holding in Hensley was that VA may not use audiometric tests from a claimant's separation examination as a per se legal bar on proving service connection.  In Hensley, inservice audiometric testing yielded elevated thresholds at some frequencies and, so, the Court found that even if audiometric testing at service separation did not met the requirements of 38 C.F.R. § 3.385 (establishing hearing loss by VA standards) the service connection claim could not be denied solely on that basis.  Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service).  

However, the holding in Hensley, Id., places no limitation on the results of inservice audiometric tests being used by medical examiners to reach an opinion, even a negative opinion, and does not hold that VA must disregard an otherwise adequate medical opinion (even if a postservice examiner found audiometric results etiologically relevant).  See Gruen v. Shinseki, No. 09-3603, slip op. (U.S. Vet. App. May 16, 2011) (nonprecedential unpublished memorandum decision); Slip Copy, 2011 WL 1837395 (Table) (Vet.App.) (noting that the Board had conceded inservice exposure to acoustic trauma and the claimant currently had a hearing loss by VA standards).   

Here, the neither the VA examiner nor the private audiologists, who as stated apparently did not review the Veteran's service records, have indicated that there were any significant shifts in thresholds in either ear which could be indicative of a later diagnosed hearing loss.  Indeed, in the absence of audiometric testing at service discharge it is difficult to imagine how any such opinion could be rendered.  

Moreover, a fair reading of the VA audiology opinion in this case reflects that the audiologist was not positing a belief that service connection is unavailable when a veteran leaves service with normal hearing (which would contravene Hensley).  Rather, the VA audiologist stated that a noise induced hearing loss had not been shown to manifest until years after the offending inservice noise had ceased.  Such a statement, rendered by an audiologist, does not contravene the holding in Hensley, Id.   

To the extent that the Veteran, as opposed to the private audiologists, reports that his hearing loss and tinnitus are related to service, he lacks the education, expertise, and medical training, to render a competent opinion as to medical matters, such as the etiology of diseases.  See Jandreau, Id., and 38 C.F.R. § 3.159(a)(1).  The Veteran may believe that the claimed disorders are related to active service and, as to this, a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  See Jandreau, Id.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a claimant is not competent to provide evidence as to more complex medical questions).  

The complexity of diagnosing the nature and etiology of the Veteran's current hearing loss and tinnitus is shown by the absence of contemporaneous clinical or lay evidence until long after service.  In fact, so complex is it that medical opinions had to be obtained.  Unfortunately, the medical opinions are negative and do not support the claims.  Rather, it is probative evidence against the claims.  

As to any more recent clinical evidence reflecting that the Veteran relates his current hearing loss and tinnitus to acoustic trauma during military service and continuous hearing loss and tinnitus thereafter, these records do no more than repeat the substance of the Veteran's statements and testimony on file.  Because any such recorded histories, even if recorded by medical personnel, add no other comment, observation, diagnosis or conclusion of a medical nature they are merely repetitive in that they simply repeat the Veteran's current allegations.  As such, these records have no significant probative value above that of the Veteran's lay statements.  In other words, a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional.  See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (where a history recorded by an examiner had not filtered, enhanced, or added medico-evidentiary value to the lay history through medical expertise).  

Moreover, the Board finds it significant that the Veteran had not filed a claim for service connection for hearing loss and tinnitus until many years after military service.  Also, the Board is cognizant that while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board, however, finds in the instant case that the combination of the lack of treatment for hearing loss and tinnitus during service; examination at service discharge from service which found no hearing loss or tinnitus; his not having complained of hearing loss or tinnitus at service discharge; not having sought treatment or disability compensation for hearing loss or tinnitus immediately after service; and the fact that his post-service clinical records are negative for any findings of hearing loss or tinnitus for many years after service discharge, to be persuasive evidence against the claims.  

Generally the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not constitute substantive negative evidence to be weighed against a claim.  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).

Here, if the Veteran had in fact had chronic hearing loss and tinnitus since any inservice acoustic trauma it would be reasonable to expect that he would have claimed service connection for these disabilities when he first had an opportunity for file a claim for VA disability compensation, such as when he filed a claim for service connection in March 1969.  However, he did not.  

Also, the Federal Circuit held that "'evidence of a prolonged period without medical complaint can be considered' in making a service connection determination."  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (approving a decision assigning more probative weight to VA opinions which relied, inter alia, on a record revealing that symptoms of the claimed disability did not begin until decades after service and after a productive working life).  Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  

As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or stated that he was given a diagnosis during service of hearing loss or tinnitus, or a diagnosis of either within one year of service discharge in February 1969 (the 2nd circumstance under Jandreau).  More recent statement that he had symptoms of hearing loss or tinnitus even during military service are simply too vague to suggest, much less establish, that he was given a formal diagnosis of hearing loss or tinnitus during active service (the 3rd circumstance under Jandreau).  

Therefore, the Board finds that because the Veteran's chronic hearing loss and tinnitus were first manifested many years after active service and any inservice acoustic trauma therein, and are not related to any disease, injury, or incident of military service, service connection is not warranted.  Moreover, as indicated previously, because the allegations regarding continuity of symptomatology are not credible, presumptive service connection for a chronic disease, i.e., sensorineural hearing loss and for tinnitus, is not warranted.  

Dental Condition

VA regulations provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis are not disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA outpatient dental treatment or examination.  38 C.F.R. §§ 17.120 and 17.123; see also 38 C.F.R. § 4.149.  

Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible.  See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability.  The loss of the alveolar process as a result of periodontal disease is not considered disabling.  See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note.  

The regulations governing dental claims make a fundamental distinction between "replaceable missing teeth", see 38 C.F.R. § 3.381(a), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease.  See 38 C.F.R. § 4.150, Simmington v. West, 11 Vet. App. 41, 44 (1998). 

Background

Service dental records indicate that the Veteran's teeth numbers 18, 19, and 30 were extracted during service.  

In May 1969 the Veteran applied for VA dental outpatient treatment (OPT), reporting that he had not been a prisoner-of-war and the dental condition for which he sought treatment was not the result of combat wounds or trauma.  He received such treatment in March 1970 for periodontal disease consisting of removal of a malaposed tooth.  

An April 10, 1970 VA dental rating noted that the Veteran had entered service with missing teeth numbers 19 and 30, and during service tooth number 18 was extracted.  

An August 2007 statement from K. W., a dentist, reflects that the Veteran had been seen at a periodontal office since April 2002.  His diagnosis was localized areas of moderate to advanced periodontitis.  He had diabetes and there was strong clinical and research evidence that supported diabetes as a major risk factor affecting the prevalence and severity of gingivitis and periodontitis.  Diabetes had been shown to significantly increase the risk of alveolar bone loss and attachment loss adjacent to the teeth.  Most diabetics had a threefold increased risk of periodontitis compared to non-diabetics.  Periodontal inflammation might also adversely affect glycemic control in diabetics.  The chronic diabetes and periodontal diseases might impact each other.  

On VA examination in September 2007, in conjunction with an examination for evaluation of the severity of his service-connected diabetes, the Veteran was provided a dental evaluation.  The claim file and military records were not available for review.  It was noted that he had been diagnosed as having diabetes in 2003, but had been seeing a periodontist since the 2001 - 2002 time frame.  His general dentist had detected periodontal pockets in 2001 and referred the Veteran to a periodontist.  Prior to that he had received routine dental care.  No trauma or broken facial bones were noted; however, the Veteran related an incident when, during an inservice parachute jump, his feet hit his head on contact with the ground.  The Veteran was unsure of the status of his periodontal condition but indicated that he might need additional periodontal surgery.  The examiner reported that there was no history of trauma to the Veteran's teeth or history of difficulty chewing, opening his mouth, drainage, or difficulty talking.  Pain was no longer an issue because he had had an endodontic procedure on tooth #13.  

On physical examination there was a loss of bone of the maxilla of more than 50 percent, and the loss was replaceable by prosthesis.  There was no nonunion or malunion of the maxilla.  There was loss of bone of the mandible but no nonunion or malunion of the mandible.  There was no limitation of motion of the temporomandibular joint.  There was no loss of bone of the hard palate and no evidence of osteoradionecrosis or osteomyelitis.  There was no tooth loss due to loss of substance of the maxilla or mandible other than loss due to periodontal disease.  The examiner stated that there was bone loss evident in the maxilla and mandible secondary to periodontal disease, but dentition was present.  However, if the dentition was lost, bone loss would be replaceable by a denture prosthesis.  X-rays revealed generalized periodontal bone loss consistent with clinical findings of periodontal probing.  

The examiner commented that literature showed that diabetes could result in a more rapid and advanced periodontal disease process, likely due to the reduced ability of diabetics to manage infections.  However, non-diabetics could also develop severe periodontal disease.  The most recent medical entry in "CPRS" indicated the Veteran had diabetes and was taking Glipizide and Metformin.  The examiner stated that no comment was made regarding glycemic control, although recent laboratory values for HbA1c appeared to be within the normal range.  The Veteran was receiving regular periodontal treatment which appeared to have stabilized his periodontal bone loss.  However, the Veteran was anticipating the need for further dental surgery.  

In correspondence received in October 2008 the Veteran stated that he had dental deterioration directly related to exposure to tropical diseases, malnutrition, and lack of dental care due to combat in Vietnam.  

The Veteran has been in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) rating since November 18, 2008.  

VA clinical records reflect that the Veteran has received VA dental treatment on a Class IV basis (being in receipt of a TDIU rating).  These reflect diagnoses of caries and gingivitis, and that teeth 2, 14, 15, 16, 18, 19, and 30 were missing.  

The Veteran stated at the 2011 DRO hearing that he was claiming service connection for periodontal disease as being secondary to his service-connected diabetes.  However, he also testified that he imagined that his periodontal disease was due to diabetes but that it was also due to a lack of the use of "base camp tooth brush."  Also, he had been unable to regularly brush his teeth when in the field in Vietnam.  He had had malaria during service, in Vietnam.  His attorney stated that malaria caused "nutrapenia" which was a change in balance of the red and white blood cell counts which then caused the nerves in the teeth to die, such as happened to those who had malnutrition.  The Veteran testified that he had his teeth cleaned every six months in an effort to control his periodontal disease, which the attorney acknowledged was a form of gum disease.  

Analysis

The Board has considered the various theories of entitlement which have been asserted on appeal.  This includes alleged exposure to tropical diseases (malaria), malnutrition.  However, the Veteran is not shown to have ever had malaria or to have had malnutrition during service.  The Board has also considered the theories of entitlement of and lack of dental care due to combat in Vietnam and some nexus to his service-connected diabetes mellitus, type II.  Also, there is no evidence of any damage to his maxilla (upper jaw bone) or mandible (lower jaw bone), or of any other impairment involving the mandible, ramus, or maxilla, during service.  

While the Veteran arguably may have had loss of teeth during service, the loss of his teeth was not due to loss of substance of the body of maxilla or mandible through trauma or disease such as osteomyelitis (e.g., an infection of the bone).  As for any tooth loss caused by dental caries, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabling, and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment, and not for service connection under 38 C.F.R. §§ 3.381(a), 4.150.  

However, even though the Veteran is already receiving VA dental outpatient treatment, inasmuch as it is conceded that the Veteran is seeking service connection for periodontal disease, it must be noted that the Veteran has not alleged, and it is not shown, that he sustained any inservice dental trauma, and that periodontal disease is not a disability for which VA disability compensation is payable.  

The Board would further note that a determination that these particular dysfunctions, as opposed to dental disability more generally, are currently manifest is a medical determination that must be made by a specialist with medical or dental training.  As the Veteran has not been shown to have such training, he is not competent to provide a diagnosis or an opinion as to etiology.  See 38 C.F.R. § 3.159(a)(2).  Accordingly, his lay opinion as to the current claim has no probative value.  

In light of the evidence discussed above, the Board finds that the probative evidence of record does not show that trauma or disease caused loss of substance of the body of the maxilla and mandible resulting in his loss of teeth.  Accordingly, the preponderance of the evidence is against the Veteran's claim, and the claim must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

Whether new and material evidence had been received to reopen a claim for service connection for DJD of both knees

The Board, in the first instance, must rule on the matter of reopening because reopening is jurisdictional.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  In the first step in reopening, there is a three-part analysis.  First, since the last disallowance on any basis, i.e., on the merits or denying reopening (Evans v. Brown, 9 Vet. App. 273, 285 (1996)), there must be new evidence (i.e., noncumulative evidence, not redundant, and not previously submitted).  VA evidence which was constructively on file and is now actually on file, may be new and material evidence if it is not cumulative and is relevant.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) and Smith (Russell) v. West, 12 Vet. App. 312, 314-15 (1999).  If no new evidence is submitted, no analysis of materiality is required.  Smith (Russell) v. West, 12 Vet. App. 312, 315 (1999).  

Second, the new evidence need be probative only as to each element that was a specified basis for the last denial without having to establish all elements needed for allowance.  Third, it must be material. 

Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Under 38 C.F.R. § 3.156(c) the receipt of additional relevant service records will be cause to reconsider a prior rating decision denying a service connection claim.  

In the reopening context, the doctrine of the favorable resolution of doubt is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993).  

After being notified by RO letter of July 19, 2004, of a rating that month denying service connection for DJD of the knees the Veteran did not appeal that decision and no additional service records have been received.  Thus, the July 2004 rating decision became final.  See 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.200, 20.302(a) and (b), 20.1103 (2017).  

Thereafter, Veteran's application to reopen the claim for service connection for DJD of the knees was received in October 2008. 


Evidence Previously On File

On VA medical examination in January 1976 the Veteran complained that constant aching of his knees had caused a lack of sleep but there was no examination of his knees.  

Private clinical records show that in July 2003 the Veteran requested a refill of medication for DJD in his knee.  The diagnoses included right knee DJD.  

A September 2003 statement from a private physician, written on a prescription note, stated that the Veteran had DJD of the right knee, with decreased range of motion.  

A December 2003 VAOPT record indicated that the Veteran had had a repair of a torn meniscus of the right knee.  A January 2004 VAOPT record reflects that the Veteran reported when his unit was under attack in Vietnam he had injured a knee.  

On VA examination in January 2004 the Veteran reported having pain in both knees since 1987, which became worse in 1997.  He now had pain and stiffness, with occasional swelling.  He had an arthroscopic procedure on his right knee in 1997, and had been told that at some time each knee would have to be replaced.  He had not had any specific injury but believed his knee conditions were due to inservice wear and tear, and parachute jumps, but no significant injury to the knees.  On examination he had limited flexion and extension of each knee.  X-rays of both knees revealed that he had degenerative changes in the right knee.  The diagnosis was DJD of both knees in a patient with morbid obesity.  The examiner opined that there was insufficient information to attribute the current knee findings with any degree of certainty to the Veteran's military service.  

In February 2004 a private physician reported that the Veteran related having injured his knees in Vietnam when parachuting and jumping off helicopters, and he had been bothered by his knees ever since.  

A March 2004 VAOPT record reflects that the Veteran related taking anti-inflammatory medication for his knees.  

On VA psychiatric examination in March 2004 the Veteran reported that he had twice been wounded in Vietnam, once in the knee.  

A May 2004 VAOPT record shows that the Veteran complained of some knee pain which started when he was hiking in Bolivia, although this was starting to get better and he had been taking over-the-counter (OTC) medications.  The assessments included knee pain.  

Additional Evidence

Of record are VA clinical records reflecting treatment for pain in the Veteran's knees.  

Of record is a November 2005 report of E. Tripi, a licensed psychologist, of an October 2005 evaluation of the Veteran in which it was reported that the Veteran had pain in his knee joints.  

At the 2006 Travel Board hearing the Veteran testified that knee pain made it difficult for him to walk.  Submitted at the hearing was a record from an orthopedic surgeon, Dr. B. McC. which shows that in May 2006 the Veteran was seen regarding his knees.  He continued to have arthritic changes, with X-rays demonstrating significant degenerative changes.  

On VA examination in September 2007 it was noted that the Veteran had had bilateral knee surgery.  

In correspondence received in October 2008 the Veteran stated that he had he had degenerative joint disease of both knees from military parachuting and exiting rotary wing aircraft during combat, having participated in many combat assaults carry full combat gear.  

The Veteran testified at the 2011 DRO hearing that he had had lived with pain in his knees ever since he feel off a cliff in Korea, although this was not in his service medical records.  An orthopedic surgeon had told him that his knee problems were due to inservice athletic activities such as jumping out of helicopters with heavy ruck sacks and parachute jumps such as those made during combat in Vietnam.  He testified that he had had a total knee replacement (in April 2009), but still had knee pain and limited function.  

Reopening

In this case, the additional evidence received since the July 2004 denial of service connection consists primarily of clinical records which do no more than continue to confirm that the Veteran has been treated for disability of his knees.  The fact that these clinical records also show that the disabilities have progressively worsened, requiring surgery on each knee and a right knee replacement, is not material as to the matter at issue which is whether the Veteran's underlying DJD of the knees is related to his military service.  

The additional evidence also includes statements and testimony of the Veteran as to the rigors of his inservice military experiences, including his participation in combat.  However, he has made only one vague allegation of having sustained a knee injury in combat and also of having had some knee injury from a fall during service.  In essence, however, he has merely repeated his prior allegations with respect to his current knee disabilities being related to military service.  

The Veteran has sought to bolster his theory of a nexus to inservice trauma in his testimony that orthopedic surgeon had told him that his knee problems were due to inservice athletic activities such as jumping out of helicopters with heavy ruck sacks and parachute jumps such as those made during combat in Vietnam.  

However, in reopening, a lay statement of what a doctor said is not the requisite medical evidence of a medical diagnosis or medical causation or etiology.  Warren v. Brown, 6 Vet. App. 4 (1993) (citing to Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).  In Warren v. Brown, 6 Vet. App. 4, 6 (1993) it was held, in the context of reopening a claim, that "any statement of appellant as to what a doctor told him is also insufficient to establish a medical diagnosis for the purpose of reopening."  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  When the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through layman's sensibilities, such evidence is too attenuated and inherently unreliable to constitute 'medical' evidence.  Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  This is true even if veteran's statements, concerning what a physician said about medical causation, are made under oath.  Kirwin v. Brown, 8 Vet. App. 148, 153 (1995). 

Thus, the additional evidence is not new and material for the purpose of reopening the claims and, accordingly, the claims for service connection are not reopened.   

Rating Principles

Service-connected disorders are rated by comparing signs and symptoms with criteria in separate DCs which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity.  38 U.S.C.A. § 1155.  Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present.  38 C.F.R. §§ 4.1, 4.2.  A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required.  38 C.F.R. §§ 4.7, 4.21.  Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

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 any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable."  McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc).  

PTSD

An initial disability rating greater than 30 percent for PTSD from January 22, 2004, until November 17, 2008, and to rating greater than 70 percent thereafter 

Under 38 C.F.R. § 4.130, the General Formula for Rating Mental Disorders a 30 percent rating is assigned 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 satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events).  Id. 

A 50 percent rating is warranted where the disorder is manifested by 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; difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: Suicidal ideations; obsessional rituals that 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); inability to establish and maintain effective relationships.  Id. 

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 or place; memory loss for names of close relatives, own occupation, or own name.  Id.

The symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  While the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  A GAF score of 41 to 50 reflects a serious level of impairment, e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting or serious impairment in social, occupational or school functioning, e.g., no friends, unable to keep a job.  A GAF score of 61-70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  Id.

Background

A March 2004 VAOPT record reflects that on psychological evaluation the Veteran's Global Assessment of Functioning (GAF) score was 70.  

On VA psychiatric examination in March 2004 the Veteran related some of his combat experiences and reported that he had flashbacks.  He had recently sought VA outpatient treatment for flashbacks and nightmares.  He had been treated by Zoloft, 50 mgs. at bed time, and Risperdal .5 mgs. at bed time.  He had no history of being a psychiatric inpatient.  He had been married for 34 years.  He had been employed most of his life and was now working on a "GM" contract for the last 3 years.  He was a master gardener.  He had one friend.  His complaints included flashbacks, nightmares, and insomnia.  

On mental status examination the Veteran was alert and fully oriented.  His mood was slightly anxious but he was not suicidal or homicidal.  He could spell the word "world" forwards and backwards with one error.  He remembered 3 out of 3 words after 3 minutes.  His hygiene and impulse control were good.  There were no hallucinations, delusions or mania.  His speech was not pressured.  No panic attacks were reported.  He reported that he avoided crowds.  The diagnosis was PTSD, symptoms of which had been set off by the recent Iraqi War and the current extent of the symptoms appeared to be mild.  His GAF score was 62.  

In May and June 2004 the Veteran submitted statements of service comrades in support of his claim for service connection for PTSD.  

Of record is a November 2005 report of E. Tripi, a licensed psychologist, of an October 2005 evaluation of the Veteran.  From 1969 to 2004 he had had at least 27 different jobs, being currently employed at the same job since 2004.  He had had difficulty with authority figures, supervisors, and coworkers.  He had always managed to obtain employment but had difficulty sustaining it.  He was currently treated at the Michigan State University Veterans Outpatient Clinic.  He had difficulty sleeping, having had dreams and nightmares of combat.  He had intermittent intrusive thoughts of Vietnam experiences, and had flashbacks.  He felt emotionally numb and void of feelings.  He had difficulty trusting others and had few close friends.  He had bouts of irritability and outbursts of anger.  His concentration was diminished and was hypervigilant.  He had an exaggerated startle response.  He had difficulty concentrating and completing tasks; generalized anxiety; insomnia, overwhelming feelings of anger; withdrawal and isolation, and bouts of depression; all of which caused severe social and occupational impairment. His GAF score was 47.  

At the March 2006 DRO hearing the Veteran testified that PTSD caused sleeping difficulty.  He had flashbacks.  He had panic attacks which were triggered by the sound of helicopters.  He had conflicts at work with managers that wanted him to write "macros" for computers, which as a contract worker he did not know how to do.  It was noted that he was taking medication for PTSD.  While he testified that PTSD impacted his social life, such that he had no friends, he stated that one individual was a close friend.  He did not like to be around people, shop or attend church.  His wife testified that in the many years of their marriage the Veteran had had twenty something jobs.  His outbursts of anger would create problems and never had any friends in management.  He had conflict with authorities and panic attacks, and he did not have any friends.  

At the 2006 Travel Board hearing the Veteran testified that working at a computer doing statistics and productivity tracking and inventory control he did not have to interact with the public.  He had been married for about 30 years.  He had difficulty sleeping.  He had satisfactory family relationships.  

On VA psychiatric examination on September 29, 2008, the Veteran's medical records were reviewed.  He continued to see a therapist once every 3 to 4 months.  He took Temazepam for psychiatric symptoms and denied having any side effects and having a moderately positive response.  He still had PTSD symptoms of nightmares, flashbacks, startle response, and sleep impairment, as well as avoidant behavior, increased anxiety, and poor socialization.  He was considering retiring from work with General Motors due to an increase in his reported inability to maintain or continue employment.  

The Veteran had been married for 38 years and he denied any aggression or assaultiveness towards her.  He had very minimal social relationships, and denied having any significant activities or leisure pursuits.  He denied a history of violence or assaultiveness.  He denied any suicide attempts since his last psychiatric rating examination.  

On mental status examination the Veteran was casually dressed, with good grooming and hygiene.  Psychomotor activity was decreased.  His speech was slow of rate but normal of tone and content.  His mood was anxious and his affect was full.  He denied having been depressed.  His thought processes were logical and sequential.  He denied having suicidal or homicidal ideation, intention or impulses as well as auditory and visual hallucinations and delusions.  He was fully oriented.  His immediate and recent memory were mildly impaired but his remote memory appeared to be "per baseline."  His attention span appeared to be intact.  He could spell the word world forwards and backwards and performed serial 7s, albeit slowly.  He endorsed having had panic attacks in the past but was unable to answer questions about having recent panic attacks.  He received at least 5 hours sleep nightly but could be interrupted by PTSD symptoms.  He was able to perform the activities of daily living, e.g., showering, shaving, grooming, and dressing.  The examiner stated that the Veteran's symptoms appeared to be very chronic and they fluctuated depending on his daily issues but appeared to significantly impair his functioning and his social life.  His GAF score was 60 to 65.  

Of record is an evaluation of the Veteran on November 18, 2008 by E. Tripi, a licensed psychologist.  He had last worked in October 2008 as a contract employee for General Motors through Aero Tech but had been laid off due to the economic downturn.  He reported that he was having more and more difficulty with his attention and focus because he had period of time when he had intrusive thoughts.  From 1969 to 2000 he had had at least 27 different jobs.  Throughout his career he had had difficulty with authority figures, supervisors and coworkers.  His employment was sedentary-skilled.  He had always managed to obtain employment but had difficulty sustaining it.  He was seen every couple of months at a VA Outpatient clinic.  

As to current symptoms, the Veteran continued to have difficulty as to his sleep patterns.  He had intermittent intrusive and involuntary thoughts of Vietnam experiences, and flashbacks.  He became extremely upset when around places, people or events that reminded him of the military, and tried to avoid them.  He continued to feel alienated, emotionally numb and void of feelings.  He continued to have difficulty trusting others, and had few close friends.  He had some suicidal ideation.  He was having more frequent panic attacks, almost on a daily basis.  He had bouts of irritability and outbursts of anger.  His concentration was diminished.  He had difficulty completing projects around his house.  He was starting to neglect his personal appearance, including grooming and clothing.  He was hypervigilant and exhibited an exaggerated startle response.  

It was stated that the Veteran's following symptoms caused severe social, personal, and occupational impairment: difficulty concentrating and completing tasks in a timely fashion; generalized anxiety, with panic attacks on a daily basis; flashbacks and intrusive thoughts; insomnia and other sleep disturbance; overwhelming feelings of anger; withdrawal and isolation; and bouts of depression.  His GAF score was 44.  After citing to various physical disabilities which the Veteran had, it was opined that based on the Veteran's education, training, past work experience, and current level of symptom, that he was not a viable rehabilitation candidate and was not employable.  

On VA psychiatric examination of May 3, 2009, the Veteran's records were reviewed.  The Veteran reported the he felt that his current individual therapy was beneficial but his wife reported that there had been little, if any, improvement in his PTSD symptoms.  The Veteran and his wife agreed that their relationship was unstable and that they might try a trial separation.  He reported that his relationship with his children was poor and that he did not have any friends, but had a relationship with an acquaintance which was friendly.  He was verbally but not physically assaultive to others, even family.  It appeared that his psychosocial functioning was subpar.  

The Veteran was clean, neatly groomed, and appropriately and casually dressed.  His psychomotor activity was unremarkable.  His speech was spontaneous, clear, and coherent.  He was cooperative and attentive.  At times he was indifferent and irritable.  His affect was normal.  His mood was anxious, hopeless, agitated, depressed, and dysphoric.  His attention was intact and he could perform serial 7s.  He could spell the word world forwards but not backwards.  He was fully oriented and his thought processes and content were unremarkable.  He had no delusions.  He reported having difficulty initiating sleep and would frequently awaken at night.  He had inappropriate behavior, and would yell at anyone that got in his way.  He had obsessive behavior in that he obsessed over the exact amount of food he would eat on a daily basis.  There were auditory and visual hallucinations.  It was reported that he had had twice yearly panic attacks.  He had no homicidal thoughts but had suicidal thoughts but denied any actual intent or plan.  His impulse control was good.  His recent memory was mildly impaired but his immediate and remote memory were normal.  He isolated himself, was frequently angry, and had multiple obsessive compulsions and paranoia.  He had depression and anxiety.  He was capable of managing his financial affairs.  His GAF score was 47.  It was indicated that he had moderate signs and symptoms of PTSD.  

The Veteran's wife indicated that she had to coax the Veteran to take a shower, he would wear that same clothes for days, and shaved infrequently.  He reported having no recreational or leisure pursuits, other than gardening.  Due to his many symptoms his functional status and quality of life had been significantly impaired.  It was felt that there was total social and occupational impairment due to PTSD.  On the other hand, it was reported that as to the problems with activities of daily living these were severe as to engaging in sports and exercise as well as other recreational activities but only moderate as to household chores, grooming, shopping, bathing, traveling, and driving, and only slight as to dressing and undressing, and no impairment as to toileting or self-feeding.  

At the 2011 DRO hearing a service comrade, D. S. who was in the Veteran's PTSD support group, testified that the Veteran had symptoms similar to his own which included avoiding the news.  His attorney noted that the Veteran's wife and another acquaintance had testified as to the Veteran's PTSD symptoms, which included his keeping a load weapon in his house.  

PTSD 30 percent from January 22, 2004 Until November 17, 2008

The Board finds, after a thorough review of the evidence, that prior to November 17, 2008, the Veteran's service-connected PTSD was not productive of occupational and social impairment with reduced reliability and productivity.  He did not have 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.  

While the Veteran had reported symptoms which might be indicative of disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships, the fact remains that he remained gainfully employed on a full time basis.  His subsequent loss of employment in October 2008 was due to a downturn in the economy and not his service-connected psychiatric disability.  The Board has considered the 2005 report of a private psychologist, including a GAF score of 47.  However, the other clinical records appear to be more consistent in the overall level of severity of the symptoms and impairment caused by the symptoms, as is consistent with GAF scores which are much higher and, so, indicative of a lower level of social and occupational impairment than that related by the private psychologist.  

Accordingly, even with the consideration of the favorable resolution of doubt, the Board finds that prior to November 18, 2008, the Veteran's service-connected PTSD did not more closely approximate a level of disability which warranted a disability evaluation in excess of 30 percent.  

PTSD 70 percent Since November 18, 2008

The evidence since November 18, 2008, shows that the Veteran's family relations have deteriorated.  A recent examination seemed to suggest that he had auditory and visual hallucinations; however, these were not described and there is otherwise not clinical evidence, or even statements or testimony by the Veteran or by anyone else that he has actually experience any genuine auditory or visual hallucinations.  

Similarly, there is recent evidence that the Veteran's maintenance of personal hygiene has diminished.  However, there continues to be no gross impairment in thought processes or communication.  The Veteran has reported having inappropriate behavior, but while this consists of yelling at others who are in his way, this is not grossly inappropriate behavior.  Similarly, there is no evidence that he is a persistent danger of hurting self or others.  Likewise, there is no evidence of disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  

Accordingly, even with the consideration of the favorable resolution of doubt, the Board finds that since November 18, 2008, the Veteran's service-connected PTSD did not more closely approximate a level of disability which warranted a disability evaluation in excess of 70 percent.  

Diabetes mellitus, type II, rated 20 percent disabling

Diabetes mellitus is currently rated 20 percent disabling under 38 C.F.R. § 4.119, DC 7913.  The 20 percent evaluation encompasses requiring insulin and restricted diet, or; oral hypoglycemic agent and a restricted diet.  The criteria for 40 percent under DC 7913 are insulin dependence, restricted diet, and regulation of activities.  The criteria for 60 percent are that the Veteran 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.  Note (1) to DC 7913 provides that compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation.  Note 2 provides that when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.  

Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under DC 7913.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).  

Background

A December 2003 VAOPT records shows that the Veteran's diabetes was controlled with medication, Avandia.  

On VA examination in January 2004 it was noted that the Veteran's diabetes had been diagnosed in September 2003.  He had been told to lose weight but his activities had not been restricted.  He took Avandia for diabetes.  On examination sensation to light touch and pin prick was intact in both hands and both feet.  There was no abnormality of reflexes and motor strength was adequate.  His skin was normal.  

In February 2004 a private physician reported that the Veteran's diabetes was under good control by taking medication and following a diet.  

A February 2004 VAOPT record shows that a recommendation that the Veteran be given a trial of Metformin therapy for diabetes was disapproved.  
A March 2004 VAOPT record shows that there was a discussion with the Veteran about changing his diabetic medication from Avandia to Glucophage.  
A May 2004 VAOPT record shows that the Veteran had been taking Glucophage, 500 mgs. daily.  The assessment was that his diabetes was well controlled.  

At the March 2006 DRO hearing the Veteran testified that diabetes had been diagnosed in 2003.  

On VA examination in September 2007 the Veteran's medical records were reviewed.  It was reported that his diabetes had progressively worsened since its 2003 onset.  The oral medications he had taken for control of diabetes were listed.  He had not been hospitalized for treatment of diabetes, but was treated for hypertension.  He had not had episodes of hypoglycemic reactions or ketoacidosis.  He was instructed to follow a restricted diet.  He was not restricted in his ability to perform strenuous activities.  He had peripheral neuropathy consisting of paresthesias, pain, increased sensitivity, and gait abnormality.  He had neuropathic symptoms in his hands and feet.  There were no diabetic skin symptoms but he had urinary frequency, urgency, and incontinence but it was also noted that he had a history of benign prostatic hypertrophy.  He had had a 10 percent weight loss compared to his baseline weight.  

As to the Veteran's extremities, he had redness of his lower extremities, and had trophic changes consisting of absent hair, dystrophic nails, and dry skin.  Pulses in the lower extremities were normal.  As to his upper extremities, they were of normal color and as to trophic changes he had only dry skin.  Pulses were normal.  

On neurologic evaluation the Veteran's coordination was normal and Romberg's sign was normal.  There was no motor loss of any of his extremities.  He had decreased sensation on the sole of each foot, the digits, and both hands.  Babinski's sign was negative, bilaterally.  While left Achilles reflex was normal at 2+, other reflexes in all extremities were only 1+.  

It was noted that he had worked full time for the last 5 to 10 years as a computer statistician.  In the last 12 month he had lost 4 weeks due to vacation and appointments.  It was reported that he had diabetic peripheral neuropathy and that his diabetes had been poorly controlled.  He had had increased absenteeism due to weakness or fatigue, decreased strength in the upper and lower extremities.  

The effects on his usual daily activities were mild as to chores, shopping, exercise, recreation, traveling, feeding, bathing, and driving.  While participation in sports was precluded there was no impact as to toileting, dressing or grooming.  It was commented that his diabetes had increased in severity because he now had hypertension and peripheral neuropathy and was taking two oral medications for diabetes.  He had problems with hypoglycemia and treated it by eating 4 to 5 small meals daily.  

The Veteran testified at the 2011 DRO hearing that his medication for diabetes had been increased.  He was beginning to shake quite a bit, which he felt was due to diabetes.  Records showed that he took "metaforman hydrochloride three times daily" and took "cliposide twice a day" for diabetes.  He also took "pilegladosone one time a day for diabetes" which was an oral medication.  

A May 6, 2015 Disability Benefits Questionnaire for evaluation of diabetes shows that the Veteran's diabetes was managed by a restricted diet, prescribed oral hypoglycemic agents, and prescribed insulin of one injection daily.  He required regulation of activities as part of his medical management.  He visited his diabetic care provider less than twice monthly.  He had had an unintentional weight loss, due to diabetes, of 14.1 %.  He had not had any episodes of ketoacidosis or hypoglycemia which in the last 12 months had required hospitalization.  He had not had progressive loss of strength attributable to diabetes.  He did have diabetic peripheral neuropathy of the upper and lower limbs.  It was indicated that his diabetes was not well controlled.  

Analysis

Until recently, the evidence showed that the Veteran has required insulin but has not been required to regulate his activities.  Thus, although the Veteran's seems to suggest that he has somewhat limited his activities, the avoidance of strenuous occupational and recreational activities has not been established by the medical evidence, as no health-care provider had instructed the Veteran to avoid strenuous occupational and recreational activities.  The Board has considered the implicit contention that the Veteran's blood sugar levels have fluctuated and his use of insulin, as well as the effect of his diabetes on his activities of daily living.  Nevertheless, the criteria for a rating in excess of 20 percent for diabetes have not been met prior to the May 6, 2015, DBQ which first established that in addition to the other schedular requirements, the Veteran's service-connected diabetes also required him to regulate his activities.  However, neither that DBQ nor any other evidence establishes that he has had episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or the he must see a diabetic care provider twice monthly.  

Thus, prior to May 6, 2017, a rating in excess of 20 percent for diabetes is not warranted and since May 6, 2015, a rating of 40 percent is warranted but not in excess of 40 percent.  

Neurological Ratings

Under 38 C.F.R. § 4.124a, the schedules for rating diseases of the cranial and peripheral nerves include alternate diagnostic codes for paralysis, neuritis, and neuralgia of each nerve.  See 38 C.F.R. § 4.124a, DC 8205 to 8730.  The diagnostic codes for paralysis of a nerve allow for multiple levels of incomplete paralysis, as well as complete paralysis.  However, the ratings available for neuritis and neuralgia of the same nerves can be limited to less than the maximum ratings available for paralysis.  In rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, DC 7115" as thin skin, absence of hair, dystrophic nails).  Peripheral neuropathy which is wholly sensory is mild or, at most, moderate.  With dull and intermittent pain in a typical nerve distribution, it is at most moderate.  With no organic changes it is moderate or, if of the sciatic nerve, moderately severe.  38 C.F.R. § 4.124a.  Neuralgia of a peripheral nerve of a lower extremity can receive a maximum rating of moderate incomplete paralysis.  38 C.F.R. § 4.124.  Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, can receive a maximum rating of severe, incomplete paralysis.  38 C.F.R. § 4.123.  

In this regard, M21-1MR, Part III, Subpart iv, Ch. 4, § G(4)(c) provides that mild incomplete paralysis encompasses the lowest level of evaluation for each nerve and is the default rating assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes.  In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area.  A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.  

Moderate incomplete paralysis is the maximum evaluation reserved for the most significant cases of sensory-only impairment under 38 C.F.R. § 4.124a.  Symptoms will likely be described by the claimants and medically graded as significantly disabling.  In such cases a larger area in the nerve distribution may be affected by sensory symptoms.  Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.  

Moderate is also the maximum evaluation that can be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve, under 38 C.F.R. § 4.124.  

Moderately severe incomplete paralysis is only applicable for involvement of the sciatic nerve and is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123.  Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected.  Atrophy may be present.  However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124, Diagnostic Code 8520. 

With severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability.  Trophic changes may be seen in severe longstanding neuropathy cases.  For the sciatic nerve, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, marked muscular atrophy is expected.  Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve; the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.  Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve, under 38 C.F.R. § 4.123.  

The Veteran's diabetic peripheral neuropathy of both lower and both upper extremities has been rated as neuritis of the external popliteal (common peroneal) and ulnar nerves.  

Incomplete paralysis, neuritis or neuralgia of the external popliteal (common peroneal) nerve warrants a 10 percent evaluation when mild; a 20 percent evaluation when moderate; and a 30 percent evaluation when severe.  A 40 percent evaluation is warranted for complete paralysis of with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes is lost; abduction of foot is lost, adduction weakened; anesthesia covers the entire dorsum of the foot and toes.  38 C.F.R. § 4.124a, DCs 8521, 8621, 8721.  

As to the ratings for the upper extremities, handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes.  38 C.F.R. § 4.69.

Incomplete paralysis, neuritis or neuralgia of the ulnar nerve warrants a 10 percent evaluation when mild and affecting either the major or minor extremity; if moderate of the minor upper extremity a 20 percent rating is assigned, and if moderate of the major upper extremity a 30 percent rating is assigned; if severe a 30 percent rating is assigned if affecting the minor upper extremity and 40 percent if affecting the major upper extremity.  Complete paralysis of the ulnar nerve of the nondominant (minor) extremity with ``griffin claw'' deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened, warrants a 50 percent rating, and a 60 percent rating is warranted if affecting the major upper extremity.  38 C.F.R. § 4.124a, DCs 8516, 8616, 8716.  

Also, it is noted that complete paralysis of the upper radicular group (5th and 6th cervicals) causes all shoulder and elbow movements to be lost or severely affected, with hand and wrist movements being not affected.  See 38 C.F.R. § 4.124a, DCs 8510, 8610, 8710.  Complete paralysis of the middle radicular group causes adduction, abduction and rotation of the arm, flexion of the elbow and extension of the wrist to be lost or severely affected.  DCs 8511, 8611, 8711.  Complete paralysis of the lower radicular group causes all intrinsic muscles of the hand, and some or all flexors of the wrist and fingers to be paralyzed, with substantial loss of use of the hand.  DCs 8512, 8612, 8712.  

As to the latter two, i.e., the middle and lower radicular groups, mild impairment of either the dominant or nondominant upper extremity warrants a 20 percent rating.  Moderate impairment warrants a 30 percent rating for the nondominant upper extremity and a 40 percent rating for the dominant upper extremity; and severe impairment warrants a 40 percent rating for the nondominant upper extremity and 50 percent for the dominant upper extremity.  

Background

On VA general medical examination in May 1969 it was noted that the Veteran was right handed.  

VAOPT records in December 2003 and January 2004 show that the Veteran denied any numbness, tingling or weakness of his extremities.  

In conjunction with a VA examination for evaluation of diabetes in September 2007 the Veteran underwent an examination for peripheral neuropathy.  It was reported that in 2003 he had the gradual onset of numbness and tingling in his hands and feet, which had progressively worsened.  Currently, he reported that in his hands and fingers he had tremors, stiffness, numbness, pain, and paresthesias such as burning.  He reported that in his feet he had numbness, paresthesias, pain, and impaired coordination in that he felt that he dragged his left foot.  He had not had any nerve conduction studies.  

With respect to sensory function, in each upper extremity he had decreased sensitivity to vibration, pain, and light touch but position sensation was normal.  This affected his radial, medial, and ulnar nerves.  In each lower extremity he had decreased sensitivity to vibration, pain, and light touch but position sensation was normal.  Reflex was normal at 2+ in the left ankle but only 1+ at all other points in the upper and lower extremities.  

With respect to motor function the Veteran had weakness with flexion at both elbows, with strength being at 4 out of 5.  The affected muscles were the flexor carpis ulnaris and flexor carpi radialis, with the affected nerves being the radial, median, and ulnar nerves.  In his lower extremities he had decreased plantar and dorsal flexion of each foot, with strength being 4 out of 5.  The affected muscle was the extensor digitorum brevis, with the affected nerves being the digital nerves.  There was no abnormal muscle tone or bulk and no muscle atrophy.  There were no tremors, tics or other abnormal movements.  The peripheral neuropathy did not affect the function of any joint.  As to a gait abnormality, he had "out toeing" on ambulation.  As to an impact on occupational activities he had decreased manual dexterity and pain.  Otherwise, it was reported that working as a computer statistic analyzer he had to take breaks and shake his hands or feet to "wake them up."  As to effects on usual daily activities, the effect was moderate as to chores and exercise but only mild as to recreation, traveling, and dressing; and none as to shopping, sports, feeding, bathing, and toileting.  

The Veteran testified at the 2011 DRO hearing that had he had no feelings in his upper and lower extremities but had a burning sensation.  He also had shaking but it was indicated that he might have early Parkinson's disease, for which he was to be evaluated.  He had pain in his feet.  He also had numbness of his hands and feet, having recently burn a hand and did not feel it.  

Diabetic peripheral neuropathy of the left lower extremity and right lower extremity, Each Rated 10 percent

Here, the Veteran's diabetic peripheral neuropathy is shown to affect each lower extremity equally.  The 10 percent rating is assigned for mild incomplete neurological impairment of the left external popliteal (common peroneal) nerve under DC 8621.  To warrant the next higher rating of 20 percent it must be shown that she has moderate incomplete paralysis, neuritis or neuralgia of the left external popliteal (common peroneal), or severe incomplete paralysis, neuritis or neuralgia of the left musculocutaneous (superficial peroneal) nerve under DCs 8522, 8622, 8722, or severe incomplete paralysis, neuritis or neuralgia of the left anterior tibial (deep peroneal) nerve under DCs 8523, 8623, 8723.  In this regard, all three of these DCs, e.g., 8521, 8522, and 8523 affect function of the feet such that separate ratings under each of these DCs is not permitted without violating the prohibition against pyramiding, i.e., double compensation, under 38 C.F.R. § 4.14.  

Initially, the Board notes that both clinical and lay evidence indicate that the Veteran's symptomatology may fluctuate.  However, a review of the evidence of record demonstrates that the Veteran does not have muscle atrophy, weakness, loss of reflexes or trophic changes of the left lower extremity.  Thus, it is clear that not only does he not have complete paralysis of any peroneal nerve but that he does not have severe incomplete paralysis, neuritis or neuralgia of any peroneal nerve.  

Overall, the Veteran has had neither decrease in sensory function with respect to the detection of sensations in the left leg nor any significant decrease in strength or reflexes.  Rather, he has had consistent complaints of pain.  

Moderate disability of the musculocutaneous, superficial peroneal, nerve and the anterior tibial, deep peroneal, nerve warrants no more than a 10 percent disability rating.  While a 20 percent rating would be warranted under DCs 8521, 8621, or 8721 for moderate disability of the external popliteal, or common peroneal, nerve.  However, the findings in this case are more consistent with no more than mild impairment of the common peroneal nerve.  

While the 10 percent rating has been assigned under DC 8621, for mild incomplete neuritis of the external popliteal, common peroneal, nerve, the Board finds that given the absence of decreased reflexes, decreased strength, muscle atrophy, trophic or organic changes the Veteran does not have the combination of symptoms and findings demonstrating moderate incomplete paralysis, neuritis or neuralgia of that peripheral nerve which would warrant a 20 percent disability rating under DC 8521, 8621, or 8721.  Although the recent examination indicated that as to the Veteran's gait, he had "out toeing" on ambulation; however, that same examiner reported that the peripheral neuropathy did not affect the function of any joint.  

Accordingly, the Board finds that throughout the appeal period the preponderance of the evidence is against finding that the Veteran's diabetic peripheral neuropathy of each lower extremity was of such severity as to warrant a disability rating in excess of 10 percent.  

Diabetic peripheral neuropathy of the left upper extremity and right upper extremity, Each Rated 10 percent

Here, the Veteran's diabetic peripheral neuropathy is shown to affect each upper extremity equally.  The 10 percent rating is assigned for mild incomplete neurological impairment of the ulnar nerve under DC 8616.  To warrant the next higher rating it must be shown that he has moderate incomplete paralysis, neuritis or neuralgia of the ulnar nerve, or moderate incomplete paralysis of the radial nerve, see DCs 8514, 8614, 8714, or moderate incomplete paralysis of the median nerve, see DCs 8518, 8615, 8715.  

The Board finds that given the absence of decreased reflexes, significantly decreased strength, muscle atrophy, trophic or organic changes the Veteran does not have the combination of symptoms and findings demonstrating moderate incomplete paralysis, neuritis or neuralgia of those peripheral nerves which would warrant a finding of moderate neurological impairment.  

However, other DCs are potentially applicable, specifically the upper radicular group (DCs 8510, 8610, 8710), or middle radicular group (DCs 8511, 8611, 8711), or lower radicular group (DCs 85812, 8612, 8712).  Inasmuch as the upper radicular group governs, in part, shoulder movement which is not affected in this case, and the lower radicular group affects only muscles of the hands, which are affected in this case, the Board finds that a rating based on the middle radicular group is warranted because it encompasses movement of the elbow and the wrist, and so more closely approximates the impairment from the diabetic peripheral neuropathy of each upper extremity.  

Under DCs 8511, 8611, and 8711, mild impairment of the middle radicular group of each upper extremity warrants a rating of 20 percent.  However, the degree of neurological involvement and functional impairment of each upper extremity is not shown to be of such severity as to equate with moderate impairment of the middle radicular nerve group of either upper extremity.  

Accordingly, with the favorable resolution of doubt, an increased rating to no more than 20 percent is warranted for mild neurological impairment of the middle radicular group of the left upper extremity and right upper extremity.  

Extraschedular Consideration

An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  This requires a three-set inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  First, is whether the evidence presents such an exceptional disability picture that the schedular evaluations are inadequate, necessitating a comparison between the level of severity and symptoms with the rating criteria, and if the criteria reasonably describe the symptoms and level of severity, the assigned schedular rating is adequate and no referral is required.  Second, if the schedular rating does not contemplate the symptoms and level of severity and is inadequate, it must be determined if there exists and exceptional disability picture which exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, if the first two inquiries are met, then the case is referred to the appropriate VA official for consideration.  Id.  

If either (1) the claimant's disability picture is adequately contemplated by the rating schedule or (2) there are no other related factors," for example, frequent hospitalizations or marked interference with employment, then referral is not warranted and the other element need not be considered.  The order in which these elements are addressed is irrelevant because they both have to be met before referral is warranted.  See id.; Thun, 22 Vet. App. at 116; see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009).   

The United States Court of Appeals for the Federal Circuit had held that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); overruling Johnson v. Shinseki, 26 Vet. App. 237, 248 (2013).  In Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) the Veterans Court rejected the contention that "[e]xtraschedular referral is always raised by the record when a veteran has multiple service-connected disabilities" [and that the Federal Circuit's decision in] Johnson [v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014)] does not make such a categorical holding."  Also, when there are multiple service-connected disorders the Board's jurisdiction was limited to only those service-connected disorders on direct appeal because it lacked jurisdiction to consider whether extraschedular referral for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.  Yancy, 27 Vet. App. at 496 (2016).  Further, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities.  See Final Rule, 82 Fed.Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed.Reg. 23228, 23232 (Apr. 20, 2016).  This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018.  

The Board acknowledges that each of these service-connected disorders results in occupational impairment but such pecuniary loss is the purpose of VA disability compensation based on average earning impairment and here the evidence does not show that the service-connected diabetic peripheral neuropathy of each extremity has interfered with employment beyond what is contemplated by the rating criteria.  While it is true that the scheduler rating criteria do not always address the symptoms specifically described by the Veteran but this alone does not mean that the rating criteria are inadequate.  38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  

As to the contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is inadequate in any way.  See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014)(nonprecedential memorandum decision).  

Also, the flexibility of the VA Rating Schedule allows for consideration of such matters as the bilateral factor, See, e.g., 38 C.F.R. § 4.26, Bilateral Factor, the combined effect of certain disabilities may result in greater disability and therefore require greater compensation.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  Here, because the Veteran service-connected disorders under extraschedular consideration affect both lower and both upper extremities the bilateral factor is for application in determining the combined rating for the purpose of calculating the amount of disability compensation payable.  

Also, when service-connected disabilities reach certain levels so as to render a Veteran either housebound or in need of regular aid and attendance of another and award of SMC may be in order.  See generally 38 C.F.R. § 3.350, Special monthly compensation ratings (setting forth the schedule for SMC ratings).  

In determining the appropriate schedular rating for PTSD, 38 C.F.R. § 4.126(a) requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  Indeed, that regulation specifically requires that a rating must be based on all the evidence that bears on occupational and social impairment and not solely on an examiner's assessment of the level of disability at the moment of the examination.  

Specifically, a wide range of factors as well as signs and symptoms are contemplated in the applicable rating criteria including the use of medication, decrease work efficiency, ability or inability to perform occupational tasks, routine behavior or self-care as well as symptoms such as anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory impairment, impaired affect; circumstantiality, impaired speech; panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal or homicidal ideation; obsessional rituals; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; delusions or hallucinations; behavior; being a persistent danger of hurting self or others; the degree of ability to perform activities of daily living; and the degree of orientation or disorientation.  Moreover, the evidence considered for rating purposes under § 4.130 is not restricted to the symptoms provided in the Rating Schedule; rather, VA must consider all relevant evidence.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 

As to the Veteran's service-connected diabetes, the applicable rating criteria take into consideration not only the treatment he received but also the functional impact of the disability, e.g., regulation of activities.  As to the diabetic neuropathies the governing rating criteria take into consideration both sensory as well as motor impairment.  

In sum, the evidence of record does not reflect that any of the service-connected disabilities is so exceptional as to not be contemplated by the rating schedule.  Rather, there is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that any service-connected disorder at issue herein is of such a nature that referral for extraschedular consideration is warranted.  



ORDER

Service connection bilateral hearing loss, tinnitus, and a dental condition is denied.  

Reopening of a claim for service connection for DJD both knees is denied.  

An initial rating greater than 30 percent for PTSD from January 22, 2004, until November 17, 2008, and to rating greater than 70 percent thereafter is denied. 

A rating in excess of 20 percent for diabetes mellitus, type II, prior to May 6, 2015 is denied. 

A rating of no greater than 40 percent for diabetes mellitus, type II, as of May 6, 2015 is granted, subject to applicable law and regulations governing the award of monetary benefits. 

An initial rating greater than 10 percent for diabetic peripheral neuropathy of the left lower extremity is denied.  

An initial rating greater than 10 percent for diabetic peripheral neuropathy of the right lower extremity is denied.  

An initial rating of no greater than 20 percent for diabetic peripheral neuropathy of the left upper extremity is granted, subject to applicable law and regulations governing the award of monetary benefits.  

An initial rating of no greater than 20 percent for diabetic peripheral neuropathy of the right upper extremity is granted, subject to applicable law and regulations governing the award of monetary benefits.  


____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs