Citation Nr: 1817067	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  06-01 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), effective April 22, 2003, to include on an extraschedular basis.

2. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity.

3. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity.

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

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

6. Whether the reduction of a rating for prostate cancer residuals from 100 percent to 40 percent, effective May 1, 2016, was proper.

7. Entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities for the periods prior to April 23, 2012 and beginning May 1, 2016.

8. Entitlement to special monthly compensation (SMC).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to May 1970, including service in Vietnam.  His decorations include a Vietnam Service Medal with one Silver Service Star, and a Republic of Vietnam Campaign Medal.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2005, August 2005, February 2016, and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The February 2005 rating decision continued a 50 percent rating for PTSD; the August 2005 rating decision denied entitlement to a TDIU; the February 2016 rating decision decreased the rating for prostate cancer from 100 percent to 20 percent, effective May 1, 2016; and the August 2016 rating decision granted separate ratings for diabetic peripheral neuropathy of the bilateral upper and lower extremities.

In December 2008, the Board denied entitlement to a rating in excess of 50 percent for PTSD.  The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a March 2011 decision, the Court vacated and remanded the Board decision, and found that a claim for entitlement to a TDIU had been re-raised by the record.  

In November 2011, the Board remanded the PTSD and TDIU claims to the RO for further development.  The Board remanded the PTSD and TDIU claims to the RO again in June 2013 for failure to substantially comply with the November 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

In December 2013, the Board denied a rating in excess of 50 percent for PTSD.  The Board also noted that during the pendency of appeal (in a December 2012 rating decision), the Veteran was granted service connection for prostate cancer and assigned a 100 percent evaluation, effective April 23, 2012, and that his combined rating was 100 percent since April 23, 2012.  The Board therefore limited the issue of entitlement to a TDIU to the period prior to April 23, 2012, and remanded it.  In October 2014, the Board remanded the TDIU claim again for failure to substantially comply with the December 2013 remand directives.

The Veteran appealed the December 2013 Board decision to the Court, and the parties filed a Joint Motion for Remand (JMR) requesting that the Board decision be vacated and remanded.  In a November 2014 Order, the Court granted the parties' motion, vacating and remanding the matter to the Board for compliance with instructions in the JMR.  

In April 2015, the Board remanded the PTSD and TDIU claims to the RO for further development.  In a February 2016 rating decision, the RO reduced the 100 percent rating for prostate cancer to 20 percent, effective May 1, 2016.  However, in a July 2017 rating decision, the rating for prostate cancer was increased from 20 percent to 40 percent, effective May 1, 2016.  As the combined rating is again less than total, the issue of entitlement to TDIU has been recharacterized as reflected on the title page.
 
The Board last considered this appeal in January 2017, and remanded these issues for additional development in order to request VA treatment records, refer an extraschedular rating for PTSD to the Director of Compensation Service, and issue a SOC for the reduced prostate cancer rating and diabetic peripheral neuropathy ratings.  After the development was completed, the case returned to the Board for further appellate review.

In November 2017, correspondence was received from the Veteran's representative.  Therein, a request was made for a corrected docket number.  The Board acknowledges this request as reflected on the title page.  Furthermore, the representative asked for a copy of a 2016 VA examination for PTSD that was referenced by the Director of Compensation Service, if such record exists.  The Board notes that the Veteran's representative has access to the claims file and speculated that the record did not exist.  Upon review, the Board also finds the record does not contain any 2016 PTSD examination and therefore, there is no need to reply to the contingent request for documents.  The last VA examination for PTSD occurred in October 2015.


FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's PTSD more nearly approximated symptoms productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, chronic sleep impairment, irritability, and mild memory loss.

2.  Throughout the period on appeal, the Veteran's PTSD symptoms are adequately contemplated by the rating schedule and do not result in other related factors identified in the regulations as governing norms, to include marked interference with employment or frequent periods of hospitalization

3.  Throughout the period on appeal, the Veteran's peripheral neuropathy of the left upper extremity more nearly approximated symptoms manifested by mild, incomplete paralysis.

4.  Throughout the period on appeal, the Veteran's peripheral neuropathy of the right upper extremity more nearly approximated symptoms manifested by mild, incomplete paralysis.

5.  Throughout the period on appeal, the Veteran's peripheral neuropathy of the left lower extremity more nearly approximated symptoms manifested by mild, incomplete paralysis.

6.  Throughout the period on appeal, the Veteran's peripheral neuropathy of the right lower extremity more nearly approximated symptoms manifested by mild, incomplete paralysis.

7.  The Veteran received notice of the proposed reduction of the disability rating for prostate cancer from 100 percent to 20 percent, by way of the rating decision dated in November 2015; the November 2015 letter also notified the Veteran of his right to submit additional evidence and request a predetermination hearing.  

8.  In a February 2016 rating decision, the RO reduced the disability rating for prostate cancer, from 100 percent to 20 percent disabling, effective May 1, 2016; however, a July 2017 rating decision increased the rating to 40 percent and assigned the same effective date based on additional evidence from the reduction period that was received after the February 2016 rating decision was issued.  

9.  The evidence of record at the time of the February 2016 rating reduction (and July 2017 rating decision) demonstrates sustained and material improvement in the Veteran's service-connected prostate cancer residuals that would be maintained under the ordinary conditions of life since the assignment of a 40 percent rating, effective May 1, 2016.

10.  Prior to April 23, 2012, the Veteran was not rendered unable to secure or follow substantially gainful employment as a result of service-connected disabilities.

11.  Since May 1, 2016, the Veteran is rendered unable to secure or follow substantially gainful employment as a result of service-connected disabilities.

12.  The Veteran is not entitled to SMC (housebound rate) because TDIU is based on multiple service-connected disabilities; thus, he does not have at least one total rating with any remaining service-connected disabilities that have a combined evaluation exceeding 60 percent and involve different anatomical segments or bodily systems.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 50 percent for service-connected PTSD have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for an extraschedular rating for PTSD are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.130, Diagnostic Code 9411 (2017); Thun v. Peake, 22 Vet. App. 111, 114 (2008).

3.  The criteria for a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2017).

4.  The criteria for a rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2017).

5.  The criteria for a rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower extremity have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017).

6.  The criteria for a rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017).

7.  The rating reduction from 100 percent to 40 percent for prostate cancer residuals was proper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.159, 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (2017).

8.  The criteria for TDIU prior to April 23, 2012, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017).

9.  Resolving reasonable doubt in favor of the Veteran, the criteria for TDIU since May 1, 2016 have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017).

10.  The criteria for special monthly compensation based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have not been met.  38 U.S.C. § 1114(s), 5107, 5121 (2012); 38 C.F.R. § 3.350 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value.  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert, 1 Vet. App. at 53.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Ratings, In General

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided.  Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Rating for PTSD

The Veteran contends that his service-connected PTSD is more severe than the current rating assigned.  This psychiatric disability is rated at 50 percent, effective April 22, 2003, under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  The Veteran submitted a claim for an increased PTSD rating that was received on August 30, 2004.

PTSD is evaluated under the General Rating Formula for Mental Disorders.  See 
38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411.  Under this General Rating Formula, a 50 percent rating is warranted for 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.  38 C.F.R. § 4.130.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.  Id.

Finally, a total, or 100 percent, rating is awarded on evidence of 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 VA Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one General Rating Formula for Mental Disorders.  38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment").

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms."  The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id.   

In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scale scores as one component of the overall disability picture.  GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 

GAF scores between 70 and 61 reflect 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, and with some meaningful relationships.  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  Scores in the 51 to 60 range indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers.  Id.  GAF scores from 50 to 41 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Id.

The Secretary of VA amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  See also Golden v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 202, *9 (Vet. App. Feb. 23, 2018)("Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies).  However, the amended provisions do not to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ.  The instant appeal was initially certified to the Board in May 2007 and the file was first transferred to the Board in January 2008.  Therefore, the updated version of the Schedule for Rating Disabilities is for application in the instant appeal.

After a full review of the record, and as discussed below, the Board finds that the Veteran's psychiatric symptoms meet or more nearly approximate the criteria for a 50 percent rating, but not higher.  The evidence of record reflects that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, chronic sleep impairment, irritability, and mild memory loss.

In October 2004, the Veteran underwent a VA examination, during which he reported that he had trouble sleeping and felt depressed and irritable because he could not get along with others.  He reported that he had a short temper.  He stated that he retired from his job as a salesperson in September 2003, after 29 years, because of increased conflicts with customers.  He reported that he experienced only two hours of restful sleep a night and infrequent nightmares and dreams about his Vietnam experiences that occurred once or twice per week or sometimes twice per month.  He reported that his wife of 36 years was very supportive.  He indicated that he was in close contact and had a good family relationship with his three grown children.  He stated that he did not socialize except when attending occasional Veterans of Foreign Wars meetings, or if he went to church with his wife, and said he tried to help some of his neighbors.  He reported that his leisure pursuits were fishing and gardening. 

On VA mental examination in October 2004, the examiner observed that the Veteran was adequately dressed in casual attire.  He had appropriate interaction with good eye contact.  The Veteran showed no impairment of thought process or communication, no delusions or hallucinations, and no suicidal or homicidal ideation or plan.  He was fully oriented to time, person, and place.  His speech was coherent and relevant with no evidence of obscure speech patterns.  His memory was intact.  He did not demonstrate obsessive or ritualistic behavior.  There was no evidence of panic attacks or impaired impulse control, nor did he report such.  The examiner assigned a GAF score of 50.  The diagnosis was chronic PTSD.  The examiner explained that this evaluation was based on the signs and symptoms on occupational and social functioning.  The examiner also reported that the Veteran's social functioning and enjoyment of leisure time activities had diminished since his retirement from his job and that he felt depressed, irritable. 

VA outpatient treatment records dated in October 2005 show that the Veteran reported difficulty sleeping.  He also reported that he felt on edge most of the time.  He stated that he experienced anxiety attacks.  He denied suicidal thoughts.  He reported that he had been married to his wife for 37 years, but explained that recently, there was a conflict in their relationship.  He stated that he tried to avoid large crowds of people, which made him very nervous, and caused him to experience a lot of intrusive thoughts.  Examination of the Veteran revealed normal speech, logical and goal directed thought process, and no hallucinations, delusions, or suicidal or homicidal ideation.  The assessment was PTSD. 

In March 2006, the Veteran underwent a VA examination, during which he reported that he had difficulty with his memory.  He stated that he slept well, controlled his irritability, and improved his relationship with his wife.  He also reported that he and his wife had worked hard to make their relationship supportive.  He reported that he did not have any friends, but enjoyed gardening.  He denied problems with anxiety.  He stated that he had intrusive memories, but denied any current nightmares.  He reported that he experienced constant hypervigilance and exaggerated startle response.  He told the examiner that he had a lack of motivation and a lessened ability to derive pleasure from previously enjoyed activities.  He also said that he left his employment two and a half years ago due to his inability to get along with certain personnel.  The Veteran endorsed a prior history of excessive alcohol use, but that he substantially reduced his alcohol intake in the last few months.       

On mental examination in March 2006, the Veteran was casually dressed.  He was alert and oriented to time, person, and place.  His mood was dysphoric and his affect was somewhat blunted, as well as depressed.  There was no evidence of suicidal or homicidal ideation, hallucinations, or delusions.  His thought processes were generally logical and goal directed.  His judgment was grossly intact.  There was no evidence or report of panic attacks, obsessive or ritualistic behavior, or impaired impulse control.  There was evidence of recent and remote recall per the Veteran's report, but his overall intellectual functioning was in the average range.  His insight appeared limited.  He denied sleep disturbance, but reported a reduced appetite, hypervigilance, and exaggerated startle.  The Veteran's GAF score was 50.         
Upon review of the claims file, the examiner diagnosed PTSD, with minimal reported symptoms.  

VA outpatient treatment records dated in May 2006 through June 2009 demonstrate that the Veteran attended a monthly support group for his PTSD.  

In November 2006, the Veteran underwent a VA examination, during which he reported that he had feelings of depression and experienced trouble sleeping.  He further reported that he isolated himself from others.  He stated that he worked as a salesperson for 29 years, but took an early retirement because he had difficulty getting along with customers and staff members.  The Veteran reported that he had been married to his wife for 34 years, and explained that she was his sole support.  He stated that he had contact with his three adult children, but characterized the relationship as distant.  He further reported that he had infrequent contact with his eldest son because he had difficulty getting along with him.  The Veteran reported that he was very close to his grandson.  He indicated that he did not have social contacts outside of his family, and explained that he felt easily aggravated by other people, and avoided them for that reason.  He said that he rarely participated in activities with organizations to which he belonged.  He stated that he participated in fishing and gardening.  The Veteran also indicated that he no longer drank alcohol and recently quit smoking.  He continued to deny any history of suicide or psychiatric hospitalizations.

On VA mental examination in November 2006, the Veteran was well groomed and appropriately dressed.  He was oriented to time, person, and place.  He maintained eye contact during the interview and displayed appropriate behavior.  The Veteran's mood was described as euthymic and he displayed affect consistent with his self-report.  His speech rate and volume were within normal limits.  His thought processes were logical, coherent, and goal-directed.  There was no indication of psychotic symptoms, and no suicidal or homicidal ideation, intent, or plan.  The Veteran reported short-term memory loss, to include forgetting names and misplacing items; however, he was able to recall the details from his military experience and appeared to be a reliable historian.  The examiner assigned a GAF score of 50.

Upon review of the claims file, the November 2006 VA examiner continued the diagnosis for PTSD.  The examiner remarked that the Veteran reported avoidance, re-experiencing, and arousal symptoms consistent with PTSD, but was vague in describing these symptoms.  The examiner also noted that the Veteran continued to exhibit symptoms of hypervigilance.  The examiner stated that the Veteran's PTSD symptoms had impeded his ability to sustain employment and form relationships outside of his immediate family.  The examiner also found the Veteran was compliant with group treatment for PTSD and reported some improvement in symptoms due to treatment.  The Veteran was found fully competent to manage his financial affairs.

An April 2009 VA outpatient treatment record demonstrates that the Veteran reported that he struggled with sleep issues and mild irritability.  He denied suicidal and homicidal ideation.  

A February 2010 VA outpatient treatment record demonstrates that the Veteran retired several years previously, but it was described as a "forced retirement."  He denied having any problematic relationships.  He also denied suicidal ideation.  He reported that he was married and had three adult children, as well as several siblings.  He stated that he and his wife were involved in church activities.  The examiner noted that the Veteran continued to express symptoms of PTSD.    

In April 2012, the Veteran underwent another VA examination.  At this time, he reported that he was still married to the same woman and had close family ties.  He stated that he had seven grandchildren, as well as good relationships with his grown children.  He noted that he saw some of his children and grandchildren once a month or so, and others less often due to the geographic distance.  He stated that he was retired since 2004.  He reported sleep disturbance, but explained that some disturbance was due to his knee aching.  He indicated that he took prescribed medication since 2002 for his sleep disturbance.   

On VA mental examination in April 2012, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to the following symptoms: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recalling events.  The examiner found that the Veteran did not have the following symptoms: impairment of short or long term memory, such as forgetting to complete tasks; difficulty in establishing and maintaining effective work and social relationships; inappropriate behavior; neglect of appearance; disorientation to time or place; panic attacks; anxiety; impaired judgment; impaired thought processes; illogical speech; impaired communication, or; impaired impulse control.  There was no evidence of suicidal or homicidal ideation, obsessive rituals, delusions, or hallucinations.  There was no evidence of the inability to carry out activities of daily living.  The Veteran's GAF score was 60.

The April 2012 VA examiner noted that the claims file was not available, but explained that the November 2006 VA examination report had been reviewed.  The examiner found that the Veteran did not meet the full criteria for PTSD at this time.  The examiner remarked that the Veteran's main symptoms were sleep disturbance and irritable mood, and noted that per the Veteran's report, some of his sleep disturbance was the result of his aching knee.  The examiner observed that the Veteran was retired, but kept busy around the house, to include engaging in gardening and cooking.  The examiner noted that the Veteran went to the gym and attended church regularly.  The examiner also noted the Veteran's report that he had a close relationship with his wife and family.  The examiner indicated that while the Veteran was currently retired and not seeking employment, if he did so, his PTSD symptoms "would probably interfere with work efficiency."  The examiner further explained that the Veteran "would benefit from a flexible schedule due to some sleep disturbances, and a job that did not require much interaction with the public due to [his] irritable mood with others."

In July 2012, the April 2012 VA examiner reviewed the Veteran's claims file.  The examiner reiterated the Veteran's GAF score of 60, and noted that while the Veteran complained of some symptoms that could be attributed to PTSD, he did not meet the full criteria for PTSD at that time.  The examiner further reiterated that if the Veteran was to seek employment, his PTSD symptoms would probably interfere with work efficiency, and he would need to find a job that did not require much interaction with the public due to his irritable mood.  The examiner explained that the Veteran has difficulty coping with others in times of stress due to irritability.  In addition, the examiner stated that the Veteran's complaints of an occasionally depressed mood did not meet the criteria for a DSM-IV diagnosis of any type of mood disorder.  The examiner emphasized that she did not feel the Veteran's PTSD symptoms precluded employment at this time.  She explained that he would probably benefit from a flexible schedule due to some sleep disturbance, and a job that did not require much interaction with the public or others due to a tendency towards irritable mood with others.

On VA examination in October 2015, the examiner diagnosed PTSD and found that the Veteran's psychiatric symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, chronic sleep impairment, and mild memory loss.  There were no other symptoms attributable to the Veteran's PTSD diagnosis.  The examiner also noted that the Veteran was still married.  The Veteran endorsed a pattern of drinking alcohol one day per week with two to three drinks per "each drinking day."  He denied use of tobacco products, illicit drugs, or abuse of prescription medication.  The examiner pointed out that the Veteran terminated his psychiatric counseling treatment in 2009, and that VA treatment records since then do not indicate that the Veteran has sought psychiatric services.  The examiner noted that the Veteran was not currently prescribed any psychotropic medications for mental health purposes.  The Veteran did not acknowledge any past or current legal or behavioral issues in his life.  The examiner found that the Veteran was capable of managing his financial affairs.  

During the October 2015 VA examination, the Veteran underwent further psychological testing.  The examiner found that the Assessment of Depression Inventory (ADI) test indicated that without any  mental health medication that the Veteran's depressive features were only within the mild to moderate range of disturbance.  The examiner found that the Structured Inventory of Malingered Symptomatology (SIMS) test revealed the possibility that the Veteran overstated and/or exaggerated his mental health symptoms for an unknown reason.  Specific to the SIMS, the examiner pointed out that the Veteran reported atypical symptoms of his depression and anxiety, acknowledged memory impairment symptoms that are inconsistent with patterns seen in brain injury or dysfunction, endorsed bizarre or unusual psychotic symptoms not typically present in actual psychiatric patients, and reported illogical and/or highly atypical neurological symptoms.  Overall, based upon the outcome findings from this psychological test, the examiner found that the reliability of the Veteran's responses were questionable.  

As part of the October 2015 VA examination, the Veteran was given the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test.  The examiner reported that the Veteran failed to cooperate with the testing  process, which resulted in an invalid profile.  However, the examiner noted that several  brief interpretations could be drawn from his test performance.  The examiner found that the Veteran's profile revealed that he understood the task and what was expected of him, even though he chose to answer the items in an unreliable and invalid manner.  His responses were noted by the examiner to strongly suggest that he desired to overstate his psychopathology in an attempt to appear more disturbed.  According to the examiner, a third suggested finding might be that the Veteran may be unsure if he has the ability or the mental health resources to handle his problems.  The examiner found that the Million Clinical Multiaxial Inventory-3 (MCMI-3) was found valid, i.e., there was no random responding detected.  The examiner found that the Veteran exhibited an extreme need toward self-disclose.  According to the examiner, the Veteran displayed an apparent willingness to readily share all his valid and/or feigned behavioral and emotional difficulties.  The examiner reported that the Veteran's test responses appeared to reveal an array of  characterological functioning.  These patterns were noted to include a fixation on negativity, impulsive or self-defeating actions, a trend toward  strongly self-involved thinking, occasional surges of heightened  activation, bouts with depression, anxiety in social situations, and a need for social isolation.  The examiner observed that the Veteran seemed to feel that he was encountering ongoing, overwhelming psychological distress in his life while he was enduring significant inner emotional turmoil.  Lastly, the examiner commented that the Veteran was a worrier and quite vulnerable to both real and imagined threats.  Overall, the examiner opined that a significant portion of the Veteran's PTSD symptoms had significantly resolved and he currently showed evidence of only an alternative, sub-threshold stress disorder (i.e., an Other Specified Trauma-and Stressor-Related Disorder).

The October 2015 VA examiner commented that the prior VA examination results (as previously documented above) were reviewed along with the results of his psychometric screening instruments, and all his protracted psychological test data were thoroughly reviewed and incorporated into a current diagnosis drawn from the DSM-5 Diagnostic Criteria of Mental Disorders.  The examiner opined that the Veteran's mental health symptoms did not cause him "clinically significant" distress or an impairment in his social, occupational, or  other areas of functioning.  Furthermore, the examiner found that the Veteran's "sub-threshold PTSD" symptoms (what used to be referred to as a "Chronic Adjustment Disorder" within the DSM-IV criteria) currently warrants a diagnosis of an Other Specified Trauma- and Stressor-Related Disorder.  The examiner opined that this new diagnosis was at least as likely as not related to service.

With regard to unemployability related to PTSD symptoms, the October 2015 VA examiner opined that he "[could] not consider the Veteran to be unemployable or even significantly affected by his PTSD-related symptoms, given the protracted, evidence-based treatment for his PTSD that he received from the Waco VAMC's PCT program."  The examiner explained, "There is very strong evidence that [the Veteran] participated actively in the Waco VAMC PCT (PTSD) treatment program for several years and, by [the Veteran's] own report, over the several years that he attended this program he gained solid coping skills to manage his PTSD-related symptomatology."  The examiner added, "During this current examination, he was found to experience only mild to moderate depressive features, but a strong tendency to over-report mental health symptoms that he does not possess.  Moreover, he has the ability to function in a social and occupational environments with his currently identified relatively mild psychological disturbances."  The examiner also commented, "He is also eligible for supportive counseling and vocational assistance under his vocational rehabilitation (Voc Rehab) benefits.  Such Voc Rehab services could facilitate his attainment of employment and his effective functioning on any such job."  According to the examiner, "[The Veteran] would most likely perform better at a small operation or job site, where any of his social and anxiety problems would be minimal and tolerated, and where he could be surrounded by only a few unfamiliar people."  Lastly, the examiner found that if the Veteran chose to seek employment, "he would definitely benefit from returning to regular, supportive, and evidence-based mental health care at a VAMC."

Based on the foregoing, the Board finds that the symptoms the Veteran primarily experienced  (e.g. depressed mood, chronic sleep impairment, irritability, and mild memory loss) were not demonstrated to be so frequent and disabling as to more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a 70 percent rating or a rating for total occupational and social impairment.  The criteria for a 70 percent rating includes symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating).  The VA examiners did not find the Veteran's psychiatric symptoms interfere with his routine activities.  

Throughout the period on appeal, the Veteran's manifestations of PTSD have included a well-groomed and appropriately dressed appearance; appropriate interaction and behavior with good eye contact; no panic attacks; no hallucinations; no delusions; no thought disorder; no impairment of communication; no impairment of judgment; no impairment of impulse control; no suicidal ideation or plan; no homicidal ideation or plan; no obsessive or ritualistic behavior; the ability to carry out activities of daily living; a short temper; feelings of depression and irritability; sleep disturbance; intrusive thoughts; anxiety; nightmares; mild memory loss; dysphoric mood; blunted and depressed affect; hypervigilance; exaggerated startle; reduced appetite; avoidance behavior; re-experiencing symptoms; and arousal symptoms.  

The evidence of record also demonstrates that the Veteran has been married to his wife for more than 40 years.  While in October 2005, the Veteran reported that he and his wife were experiencing conflict in their relationship, overall, the record shows that has a good relationship with his wife, as he described her as very supportive.  Further, in March 2006, he stated that he and his wife worked hard to make their relationship supportive, and again noted her to be his support system in November 2006.  Similarly, in April 2012, he noted that he was still married to the same woman, with close family ties.  Moreover, in November 2006 he characterized his relationship with his three grown children as distant; however, the record demonstrates that he generally has a good relationship with his children, as he reported such during examinations in October 2004 and April 2012.  Further, in November 2006, he reported that he was close to his grandson.  Additionally, in April 2012, he indicated that he saw some of his children and grandchildren once a month or so, and others less due to the geographic distance.  Although the Veteran reported that he did not have friendships outside of his family, he participated in a veterans service organization, attended church with his wife regularly, went to the gym regularly, and enjoyed fishing and gardening.  

Finally, the evidence shows that subsequent to discharge from service, the Veteran worked for approximately 29 years for the same company as a salesperson.  Although, the Veteran consistently reported that he retired early as a result of his inability to get along with others, he maintained his position for almost three decades with the same company.  Accordingly, the medical evidence of record does not demonstrate or more nearly approximate that there is occupational and social impairment with deficiencies in most areas.  See 38 C.F.R. § 4.130, DC 9411.     

The Board has considered the Veteran's statements of record during the appeal that a higher disability rating is warranted for his psychiatric disability.  The Veteran is competent to report symptomatology relating to his PTSD because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  However, the Board finds that the question of the severity of his PTSD is medically complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  

To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings that were made during the period on appeal.  Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during each period of the appeal and provided relevant medical findings in conjunction with the examinations.  In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability.  Furthermore, any other symptoms reported by the Veteran during this period (not including chronic sleep impairment, irritability, mild memory loss and depression) have not shown to be so frequent and disabling to result in occupational and social deficiencies in most areas.

The Board has carefully considered the Veteran's GAF scores.  During the rating period on appeal, the Veteran's GAF scores ranged from 47 in group treatment notes from 2004 and 2005 to 60 in 2012.  Generally, GAF scores were around 50 from 2004-2006, and 60 in 2012, indicating moderate to serious symptoms.  Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  See Carpenter, 8 Vet. App. at 242.  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126; VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).  Significantly, the records with a GAF of 47 were from group treatment records and no other symptoms, discussion, or rationale to explain or support the assignment of the GAF score was included.  The Board finds the description of symptoms from the individual treatment records and VA examinations to more accurately describe the Veteran's symptoms.  

Likewise, the GAF score of 50 assigned to the Veteran's PTSD as a result of the VA examinations in 2004 and 2006 are indicative of a severe disability picture with serious impairment in social, occupational, or school functioning, such as the inability to keep a job; or symptoms such as suicidal ideation, severe obsessional rituals, or frequent shoplifting.  However, the objective and subjective symptomatology, as well as the clinical evidence reported at such examinations, do not reflect symptoms that are indicative of such a disability picture.  While the examinations revealed mild memory loss, sleep disturbance, hypervigilance, dysphoric mood, blunted and depressed affect, avoidance behavior, re-experiencing symptoms, and arousal symptoms, such symptomatology is indicative of moderate impairment, as the Veteran was able to maintain a job for 29 years as a salesman with the same company, he has remained married to his wife for more than 40 years in a supportive relationship, and he has a relationship with his grown children and spends time with his grandchildren.  In addition, the Veteran was well-groomed and appropriately dressed; displayed appropriate interaction and behavior with good eye contact; there were no panic attacks; there were no hallucinations, delusions, thought disorder, or impairment of communication; there was no impairment of judgment; there was no impairment of impulse control; there was no suicidal ideation or plan; there was no homicidal ideation or plan; and there was no obsessive or ritualistic behavior.  Serious impairment in family relations and at work was not shown, and there was no evidence of suicidal ideation, severe obsessional rituals, or frequent shoplifting.

The assigned GAF score and the objective symptomatology resulting from the April 2012 VA examination presents a moderate disability picture, and connotes moderate difficulty in social or occupational functioning, suggesting that a disability picture in excess of 50 percent is not warranted.  Specifically, the April 2012 VA examiner indicated that there was evidence of difficulty in establishing and maintaining effective work and social relationships, suggesting the current 50 percent disability picture.  Indeed, the April 2012 VA examination revealed mild memory loss, such as forgetting names, directions, or recalling events, and the examiner found that there was no short or long term memory loss.  Furthermore, such examination also revealed a depressed mood and chronic sleep impairment.  On VA examination in October 2015, the examiner found that the Veteran's psychiatric symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, chronic sleep impairment, and mild memory loss.  Such symptoms, in fact, are suggestive of a 30 percent disability picture.   

The Board has also considered whether additional Diagnostic Codes are applicable for this period.  The evidence of record indicates that the Veteran's service-connected psychiatric disability was primarily manifested by symptoms of depressed mood, chronic sleep impairment, irritability, and mild memory loss.  There is no medical or lay evidence of mental health symptoms that would not result in the prohibition of pyramiding other Diagnostic Codes.  The October 2015 VA examiner opined that a significant portion of the Veteran's PTSD symptoms had significantly resolved and that he currently showed evidence of only an alternative, sub-threshold stress disorder (i.e., an Other Specified Trauma-and Stressor-Related Disorder).  However, the examiner had also previously indicated that the Veteran had a diagnosis for PTSD and did not have more than one mental disorder diagnosed.  While the diagnosis of an adjustment disorder represents a progression of the previously diagnosed PTSD, the current diagnosis for PTSD should remain.  See 38 C.F.R. § 4.125(b).  Nonetheless, the Veteran's psychiatric symptoms are still clearly accounted for in the 50 percent rating pursuant to DC 9411.  Thus, DC 9201 to 9410 and 9412 to 9521 are not for application.  See Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if supported by explanation and evidence).

Accordingly, the Veteran's PTSD warrants a 50 percent rating, but no higher, for the period on appeal.  All evidence has been considered and there is no doubt to be resolved.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Rating for PTSD

The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected psychiatric disability.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008). 

First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.   

If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). 

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

Regarding the first step of the extraschedular analysis, the schedular rating criteria used to rate the Veteran's service-connected psychiatric disability reasonably describe and assess the Veteran's disability level and symptomatology.  The criteria rate the disability on the basis of occupational and social impairment; thus, the demonstrated manifestations specifically associated with the Veteran's service-connected psychiatric disability - namely depressed mood, chronic sleep impairment, irritability, and mild memory loss - are adequately contemplated by the provisions of the rating schedule as previously outlined in 38 C.F.R. § 4.130, DC 9411.  All the impairment and symptoms are either explicitly part of the schedular rating criteria or are "like or similar to examples or symptoms in the schedular rating criteria.  Mauerhan, 16 Vet. App. at 44.  In addition, the GAF scores, which are incorporated into the schedular rating criteria as part of the DSM-IV, assess the degree of overall occupational and social impairment.  For these reasons, the Board finds the symptoms are contemplated by the schedular criteria.

Furthermore, the Veteran's PTSD symptoms do not exhibit an exceptional disability picture or other related factors identified in the regulations as "governing norms."  Id.; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  The Board notes that with respect to the claim for an extraschedular PTSD rating, the October 2004 VA examiner confirmed the Veteran's diagnosis of PTSD, and noted the Veteran's report of leaving his job as a salesperson in September 2003, after 29 years, because of increased conflicts with customers.  In addition, during the March 2006 VA examination, the Veteran reported that he retired because of his inability to get along with others, to include personnel.  The November 2006 VA examiner noted that the Veteran's PTSD symptoms impeded his ability to sustain employment.  Moreover, the April 2012 VA examiner noted that if the Veteran was seeking employment, his PTSD symptoms would probably interfere with work efficiency, and he would need to find a job that did not require much interaction with the public due to his irritable mood.  In this regard, the Board previously noted that the Veteran's career of 29 years was centered around his ability to interact with the public, as he was a salesperson.  

The evidence described above was used as the initial reason for referring this issue.  However, the Board notes that since that time another VA examination opinion was obtained in October 2015 regarding the impact of the Veteran's PTSD symptoms on employability.  With regard to unemployability related to PTSD symptoms, the October 2015 VA examiner opined that he "[could] not consider the Veteran to be unemployable or even significantly affected by his PTSD-related symptoms, given the protracted, evidence-based treatment for his PTSD that he received from the Waco VAMC's PCT program."  The examiner explained, "There is very strong evidence that [the Veteran] participated actively in the Waco VAMC PCT (PTSD) treatment program for several years and, by [the Veteran's] own report, over the several years that he attended this program he gained solid coping skills to manage his PTSD-related symptomatology."  The examiner added, "During this current examination, he was found to experience only mild to moderate depressive features, but a strong tendency to over-report mental health symptoms that he does not possess.  Moreover, he has the ability to function in a social and occupational environments with his currently identified relatively mild psychological disturbances."  The examiner also commented, "He is also eligible for supportive counseling and vocational assistance under his vocational rehabilitation (Voc Rehab) benefits.  Such Voc Rehab services could facilitate his attainment of employment and his effective functioning on any such job."  According to the examiner, "[The Veteran] would most likely perform better at a small operation or job site, where any of his social and anxiety problems would be minimal and tolerated, and where he could be surrounded by only a few unfamiliar people."  Lastly, the examiner found that if the Veteran chose to seek employment, "he would definitely benefit from returning to regular, supportive, and evidence-based mental health care at a VAMC."  The Board finds this medical opinion highly probative of a negative finding against granting an extraschedular rating for the Veteran's PTSD symptoms because it directly addresses why the Veteran's PTSD symptoms do not exhibit an exceptional disability picture or other related factors identified in the regulations as "governing norms."

Based on the foregoing, the evidence shows that the Veteran's PTSD symptoms are adequately contemplated by the rating criteria.  Furthermore, the Veteran's PTSD symptoms do not result in other related factors identified in the regulations as "governing norms," to include marked interference with employment or frequent periods of hospitalization.  Throughout the period on appeal, the Veteran's PTSD symptoms have consistently been described as only mild to moderate.  The Veteran's irritability has been claimed as the main reason for his retirement after 29 years as a salesperson.  However, this symptom has been taken into account in the schedular rating criteria.  Some VA examiners have described this particular symptom as a potential barrier to certain employment situations; however, every examiner has found that the evidence of record does not support occupational and social impairment beyond reduced reliability and productivity.  As the Veteran's PTSD disability picture for the entire appeal period is contemplated by the rating schedule and does not result in other related factors identified in the regulations as governing norms, to include marked interference with employment or frequent periods of hospitalization, the assigned schedular evaluation is adequate.  For these reasons, the Board finds that an extra-schedular evaluation is not warranted.  38 U.S.C. § 1155; 38 C.F.R. § 3.321(b).  

Ratings for Peripheral Neuropathy of the Upper and Lower Extremities

The Veteran contends that his diabetic peripheral neuropathy symptoms of the upper and lower extremities are more severe than the current ratings reflect (20 percent for bilateral upper extremities, and 10 percent for bilateral lower extremities; all ratings are effective February 26, 2016, the date his claim was received).  See 38 C.F.R. § 4.124a, Diagnostic Codes (DC) 8513, 8520.  From March 9, 2006, to February 25, 2016, the Veteran's diabetic peripheral neuropathy symptoms were considered noncompensable complications rated as part of his service-connected diabetes.

Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119 (1999).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, a rating is to be made by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.

Diagnostic Code 8513 provides the rating criteria for paralysis of all radicular groups.  Mild, incomplete paralysis warrants a 20 percent rating for the major or minor upper extremity.  Moderate, incomplete paralysis warrants a 40 percent rating (major) or 30 percent rating (minor).  Severe, incomplete paralysis warrants a 70 percent rating (major) or 60 percent rating (minor).  Complete paralysis warrants a 90 percent rating (major) or 80 percent rating (minor).  38 C.F.R. § 4.124a.  

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve.  A 20 percent rating requires moderate, incomplete paralysis.  A 30 percent rating requires severe, incomplete paralysis.  A 40 percent rating requires complete paralysis.  When there is complete paralysis, the foot dangles and droops, there is no active movement possible of the muscles below the knees, or flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.  

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is only sensory, the rating should be for the mild or, at most, the moderate degree.  38 C.F.R. § 4.124a.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull.  38 C.F.R. § 4.120.

The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  

After a full review of the record, and as discussed below, the Board concludes that ratings in excess of 20 percent for diabetic peripheral neuropathy of the left and right upper extremities are not warranted.  Furthermore, ratings in excess of 10 percent for diabetic peripheral neuropathy of the left and right lower extremities are not warranted. 

As background, on VA examination in November 2015, the examiner noted that the Veteran did not have a diagnosis for diabetic peripheral neuropathy.  Instead, the examiner pointed out that the Veteran had a neurological consultation in 2005 wherein a diagnosis of restless leg syndrome was made, but there was no mention of peripheral neuropathy.  The examiner noted that no subsequent consultations were requested or performed in this regard.  The examiner reported that VA treatment records since 2005 showed there were no complaints of paresthesias, hypesthesia, numbness or neurogenic pain with exception to sciatica of the left lower extremity.  Additionally, the examiner noted that with exception to subjective complaints during prior VA examinations, there has been no support for a diagnosis of diabetic peripheral neuropathy.  During this VA examination, the Veteran also expressed denial of a diagnosis for diabetic peripheral neuropathy.  The Veteran was found to be right hand dominant.  The Veteran only endorsed subjective symptoms of severe, intermittent pain in the right lower extremity.  The examiner reported that the Veteran has had a diagnosis of lumbosacral spinal disease with sciatica, which causes occasional severe pain in the right sciatic nerve distribution.  On neurologic examination, all strength tests were normal.  Deep tendon reflex testing revealed decreased reflexes in the bilateral knees and absent reflexes in the bilateral ankles.  Light touch/monofilament testing results were all normal.  Position sense tests were normal.  Vibration sensation testing revealed decreased sensation in the right lower extremity and normal results for all other extremities.  Cold sensation was not tested.  The Veteran did not have muscle atrophy.  There were no trophic changes attributable to diabetic peripheral neuropathy.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to diabetic peripheral neuropathy.  The examiner commented that the claimed diabetic peripheral neuropathy did not affect the Veteran's ability to work.  In conclusion, the examiner remarked that the physical examination and the Veteran's history of symptoms were consistent with his finding that the Veteran did not have diabetic peripheral neuropathy, but did have a history consistent with right sciatic nerve pain.

The Veteran received a VA examination in July 2016.  The examiner reported that the Veteran was diagnosed with diabetic peripheral neuropathy.  The Veteran endorsed a gradual onset and increased severity over time.  He complained of burning pain, numbness, and tingling in the bilateral feet as well as numbness and tingling in the hands and fingers.  He had increased pain in his feet when standing or walking for long periods of time.  The Veteran only endorsed moderate symptoms of intermittent pain, paresthesias, and numbness in the bilateral lower extremities.  He also endorsed only mild symptoms of intermittent pain, paresthesias, and numbness in the bilateral lower extremities.  Neurologic examination revealed all normal results.  Deep tendon reflexes were all normal.  Light touch/monofilament testing results were all normal except for decreased results in the bilateral hands/fingers, bilateral ankles/lower legs, and bilateral feet/toes.  Position senses were normal for the bilateral upper extremities, but were decreased for the bilateral lower extremities.  Vibration and cold sensations were normal for the bilateral upper extremities, but decreased for the bilateral lower extremities.  There was no muscle atrophy.  There were trophic changes attributable to diabetic peripheral neuropathy as evidenced by loss of hair with shiny skin on the bilateral lower extremities.  The examiner found that the severity of the Veteran's diabetic peripheral neuropathy for the bilateral upper extremities was characterized by mild, incomplete paralysis of the radial, median, and ulnar nerves.  The examiner also found that the severity of the Veteran's diabetic peripheral neuropathy for the bilateral lower extremities was characterized by mild, incomplete paralysis of the sciatic nerve.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to diabetic peripheral neuropathy.  The examiner remarked that the Veteran's diabetic peripheral neuropathy affected his ability to work because it caused difficulty standing or walking for long periods of time due to increased pain, numbness, and tingling in the feet.

The Board has considered the Veteran's statements of record that higher disability ratings are warranted for his diabetic peripheral neuropathy of the bilateral upper and lower extremities.  To the extent the Veteran contends that these symptoms are more disabling than the currently assigned ratings reflect, the Veteran is able to report symptomatology relating to pain because this requires only personal knowledge as it comes through his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board also acknowledges the Veteran's point of view regarding his statements of worsened symptoms.  He described subjective symptoms of burning pain, numbness, and tingling.  However, to the extent that the Veteran alleges greater severity, the probative value of his allegations is outweighed by the aforementioned examiner's findings that were objectively found to be mild symptoms of diabetic peripheral neuropathy in the bilateral upper and lower extremities.  During the period on appeal, competent evidence concerning the nature and extent of the Veteran's disability was provided by the July 2016 VA examiner and included relevant medical findings in conjunction with the examination.  In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability.  Accordingly, the medical examination opinion and findings are of greater probative value than the Veteran's allegations regarding the severity of his diabetic peripheral neuropathy in the bilateral upper and lower extremities.  

The Board has also considered whether higher or separate Diagnostic Codes are applicable.  The evidence of record indicates that the Veteran is diagnosed with diabetic peripheral neuropathy in the bilateral upper and lower extremities that is primarily manifested by mild, incomplete paralysis of all radicular groups and the sciatic nerves.  Accordingly, DCs 8513 and 8520 are the most appropriate Codes to use.  See Butts v. Brown, 5 Vet. App. 532.  There is no medical or lay evidence of other peripheral neuropathy symptoms that would not result in the pyramiding of other nerve-related Diagnostic Codes.  The Board has considered whether higher ratings are available, but at no time during the pendency of this period of the appeal has the Veteran's peripheral neuropathy disabilities been shown to result in moderate or severe, incomplete paralysis, or complete paralysis.  The Veteran's symptoms associated with diabetic peripheral neuropathy are clearly accounted for in the 20 percent ratings for each of the bilateral upper extremities pursuant to DC 8513 and 10 percent ratings for each of the bilateral lower extremities pursuant to DC 8520.  Thus, other Diagnostic Codes are not for application.

Based on the foregoing, the Board concludes that the Veteran's symptoms of diabetic peripheral neuropathy have more nearly approximated the criteria for no more than 20 percent ratings for each of the bilateral upper extremities and 10 percent ratings for each of the bilateral lower extremities.  All evidence has been considered and there is no doubt to be resolved.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration for Peripheral Neuropathy Ratings

The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected diabetic peripheral neuropathy in the bilateral upper and lower extremities.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008). 

First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.   

If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). 

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

In this case, the schedular rating criteria used to rate the Veteran's service-connected diabetic peripheral neuropathy in the bilateral upper and lower extremities above, reasonably describe and assess the Veteran's disability level and symptomatology.  The criteria rate these disabilities based on the severity of paralysis (incomplete, but mild, moderate, or severe, and; complete); thus, the demonstrated manifestations specifically associated with his service-connected diabetic peripheral neuropathy in the bilateral upper and lower extremities - namely mild, incomplete paralysis accompanied by subjective symptoms of burning pain, tingling, and numbness - are contemplated by the provisions of the rating schedule as previously outlined in 38 C.F.R. § 4.124a, DCs 8513, 8520.  As the Veteran's disability picture for the entire appeal period is contemplated by the rating schedule, the assigned schedular evaluation is adequate and the first step of Thun has not been met.  

For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's diabetic peripheral neuropathy in the bilateral upper and lower extremities, and referral for consideration of an extra-schedular evaluation is not warranted.

Rating Reduction for Prostate Cancer Residuals

The Veteran contends that the reduction in the disability rating for prostate cancer from 100 percent to 40 percent, effective May 1, 2016, was improper.

Historically, the RO granted service connection for prostate cancer in a December 2012 rating decision.  The disability was rated as 100 percent disabling under Diagnostic Code (DC) 7528, effective April 23, 2012.  The decision notification letter explained that an examination would be scheduled at a future date to evaluate the severity of the disability.  The Veteran did not appeal that decision.  The Board notes that the February 2016 rating reduction was originally from 100 percent to 20 percent, but a July 2017 rating decision subsequently increased the rating to 40 percent and assigned the same effective date, May 1, 2016.

Where action by the rating agency would result in the reduction or discontinuance of compensation payments, section 3.105(e) requires that a rating initially proposing the reduction or discontinuance be prepared setting out all material facts and reasons for the proposed action.  The regulation requires that the beneficiary of the compensation payments be notified at his or her latest address of record of the contemplated action, furnished detailed reasons therefore, and be given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level.  See 38 C.F.R. § 3.105(e).  Furthermore, section 3.105(i) requires that the Veteran be informed that he or she may request a predetermination hearing provided that the request is received by VA within 30 days from the date of the notice of the proposed rating reduction.  See 38 C.F.R. § 3.105(i)(1).
 
Section 3.105 directs that unless otherwise provided by the subsection 3.105(i), a final rating action will be taken and the award will be reduced or discontinued, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action has expired.  See 38 C.F.R. § 3.105(e).

In this case, the Veteran was notified of the proposed reduction in a November 2015 rating decision and a November 2015 letter.  The rating decision and letter furnished detailed reasons for the proposed reduction, and also informed him that he had 60 days in which to submit additional evidence.  The February 2016 rating decision that finalized the proposed reduction is dated well after the end of the 60 days in which the Veteran had to respond.  The Veteran was informed of the final reduction in a February 2016 letter, and was notified that the effective date of the reduction was May 1, 2016.  This effective date was one day after the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  The Veteran did not request a predetermination hearing.  The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements above.  Accordingly, the Board finds that the proper procedure was followed for making a rating reduction in this matter.  Nonetheless, and as explained in further detail below, because the Board is granting TDIU since May 1, 2016, the reduction does not result in a reduction or discontinuance in the total amount of compensation payable to the Veteran; therefore, any procedural issues stemming from 38 C.F.R. § 3.105(e) did not adversely affect the Veteran.  See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also VAOPGCPREC 71-91 (Nov. 1991).

The Board will now determine whether the reduced rating for prostate cancer from 100 percent to 40 percent was supported by the evidence at the time of the rating decision.

In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability.  VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations.  Faust v. West, 13 Vet. App. 342 (2000).  VA is not limited, however, to medical indicators of improvement.  Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment.  Id.  The examination reports on which the reduction are based must be adequate.  See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). 

In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992).  Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well.  Collier v. Derwinski, 2 Vet. App. 247 (1992). 

Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities.  See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination.  See Brown, 5 Vet. App. at 417-18.  Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath, 1 Vet. App. at 595.  In this case, the 100 percent rating for prostate cancer was in effect for less than five years at the time of the reduction.  Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. 

Under the provisions of 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits.  Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations.  In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344(c). 

In determining whether the reductions were proper in this case, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had actually improved.  Cf. Dofflemyer, 2 Vet. App. at 281-282.  Such after-the-fact evidence may not be used to justify an improper reduction.

Prostate cancer is evaluated under the rating code for malignant neoplasms of the genitourinary system.  38 C.F.R. § 3.115b, DC 7528.  Under DC 7528, a 100 percent evaluation is assigned for malignant neoplasms of the genitourinary system.  A Note following DC 7528 provides that following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent will continue with a mandatory VA examination at the expiration of six months.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b, DC 7528.

In this case, the medical evidence of record shows that the Veteran's prostate cancer radiation treatment ended in June 2013 and subsequently received 18 months of hormonal therapy.  VA treatment records also indicate that he had no post-operation complications.  None of the evidence of record shows that there had been a local reoccurrence or metastasis of the Veteran's prostate cancer.  Accordingly, a 100 percent evaluation is no longer warranted under DC 7528 and the disability must be rated on its residuals.  See id.

Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a.  Urine leakage requiring the wearing of absorbent materials that must be changed less than 2 times per day warrants a 20 percent rating.  A 40 percent rating is warranted when the wearing of absorbent materials that must be changed 2 to 4 times per day is required.  A 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day is required.  Id.

Urinary frequency involving a daytime voiding interval between one and two hours, or; awakening to void three to four times per night, warrants a 20 percent rating.  A daytime voiding interval less than one hour, or; awakening to void five or more times per night, warrants a 40 percent rating.  Id. 

Obstructed voiding causing urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating.  Id.

A 30 percent rating is warranted for renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101.  Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension, at least 40 percent disabling under DC 7101 warrants a 60 percent disability rating.  Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80 mg percent; or, creatinine 4 to 8 mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent disability rating.  Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following; persistent edema and albuminuria; or, blood urea nitrogen (BUN) more than 80 mg percent; or, creatinine more than 8 mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent disability rating.  Id.

Following a review of the evidence, the Board finds that the reduction in the rating for prostate cancer residuals from 100 percent to 40 percent, effective May 1, 2016, was proper.

The Veteran was initially awarded a 100 percent rating for prostate cancer due to an active diagnosis that was noted during an April 2012 VA examination.  Also, the April 2012 VA examination, which was a general medical examination, noted that no treatment had started at this time.  The examiner reported that the Veteran's claims file was unavailable for review, but that his VA treatment records were reviewed.

A June 2014 VA contract examination showed that the prostate cancer was in remission after undergoing radiation treatment in 2013 and hormonal therapy in 2014.  The contract examiner did not indicate whether the Veteran's claims file and/or treatment records were reviewed.  The examination revealed that the Veteran experienced voiding dysfunction that caused urine leakage and required absorbent materials that must be changed 2 to 4 times per day.  The voiding dysfunction did not require the use of an appliance, but did cause increased daytime voiding frequency intervals between 1 and 2 hours and nighttime awakening to void 5 or more times.  The voiding dysfunction caused signs or symptoms of obstructed voiding due to hesitancy that was exhibited by a markedly slow or weak stream.  The Veteran did not have any urinary tract or kidney infections, but he had erectile dysfunction due to radiation treatment for the prostate cancer.  He did not take any medication for erectile dysfunction, and he was not able to achieve an erection sufficient for penetration and ejaculation.  He did not have retrograde ejaculation.  There were no residual conditions and/or complications due to prostate cancer or treatment for prostate cancer.  Diagnostic testing noted that the Veteran's urologist was aware that he had blood in his urine.  The Veteran reported that he had a cystoscopy performed and found his prostate was leaking blood.  The functional impact of the Veteran's prostate cancer was exhibited by frequent urination at night that made him sleepy during the day.  Furthermore, the medication that he took for hot flashes caused diarrhea and/or constipation.  The examiner noted that with frequent urination the Veteran also has to be within close range of a bathroom.  Lastly, the examiner remarked that the final diagnoses of urinary frequency and erectile dysfunction are common complications associated with radiation therapy.  The Veteran's 100 percent rating was continued at this time based on VA treatment records showing that he was still receiving hormonal therapy at this time.

On VA examination in June 2015, the examiner noted that the Veteran's virtual claims file and VA treatment records were reviewed.  The examiner noted the past diagnoses for prostate cancer in March 2012 and a hematuria in June 2014.  The Veteran was noted to continue with hormonal therapy for his prostate cancer and was having a hematuria that was set up for a cystoscopy.  The prostate cancer was noted to be in remission.  The examination revealed that the voiding dysfunction did not require the wearing of absorbent material or use of an appliance.  The voiding dysfunction caused daytime voiding intervals between 1 and 2 hours as well as nighttime awakening to void 3 to 4 times.  The voiding dysfunction did not cause signs or symptoms of obstructed voiding or any other obstructed symptoms.  There was no history of recurrent symptomatic urinary tract or kidney infections.  The Veteran's erectile dysfunction was noted to exist since 2007, which was prior to his prostate cancer diagnosis.  The Board notes that the Veteran has not contended, nor does the evidence otherwise show, that his diabetes or associated peripheral neuropathy of the bilateral upper and lower extremities, have caused loss of use of a creative organ such that referral of a claim for special monthly compensation is warranted.  The examiner opined that the erectile dysfunction was not at least as likely as not related to the aforementioned diagnoses, including any residuals of treatment.  

The June 2015 VA examiner noted that the Veteran was not able to achieve an erection sufficient for penetration and ejaculation with or without medication.  He did not have retrograde ejaculation.  There were no other residual conditions and/or complications due to prostate cancer or  related treatment.  There was no renal dysfunction due to this condition.  According to the examiner, there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the aforementioned diagnoses.  Diagnostic testing from May 2015 revealed a prostate-specific antigen (PSA) of less than 0.1.  The examiner found that the prostate cancer residuals affected the Veteran's ability to work due to frequent urination.  In a November 2015 addendum opinion, the examiner added that the Veteran had previously received hormonal therapy for a period of 18 months, but that he was no longer undergoing this treatment.  

Based on the June 2015 VA examination and November 2015 addendum opinion, the RO proposed to reduce the Veteran's 100 percent rating because the evidence now showed no active treatment for prostate cancer and the residuals found on this VA examination more nearly approximated a 20 percent rating.  However, VA treatment records from this period also showed that the Veteran reported nighttime voiding between 6 to 7 times.  As a result, a July 2017 rating decision awarded a 40 percent rating instead and assigned the same effective date.  While the Veteran's representative argued against the reduction, alleging that the Veteran's prostate cancer residuals did not show evidence of sustained improvement that actually improved his ability to function under the ordinary conditions of life and work due to frequent urination, such reduction was effectuated in the February 2016 and July 2017 rating decisions as of May 1, 2016.  Thereafter, the Veteran appealed with regard to the propriety of his reduction.  He also endorsed difficulty sleeping, wearing absorbent materials at night, and losing weight.  See VA Form 9, received August 1, 2017.  This statement is of limited probative value as the Veteran did not provide further details about when he started having these symptoms or give any indication as to their frequency and severity.

Based on the foregoing, the Board concludes that the RO's reduction in rating from 100 to 40 percent for residuals of prostate cancer was proper, as the evidence at the time of the reduction demonstrated that the Veteran's prostate cancer had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work.  A schedular 100 percent rating will not be reduced without examination showing material improvement.  38 C.F.R. § 3.343(a).  At the time service connection for prostate cancer was granted and the 100 percent rating was assigned, the Veteran's cancer was active.  However, based on the June 2015 VA examination and November 2015 addendum opinion, the Veteran's prostate cancer was shown to have materially improved as his cancer was in remission and he was no longer receiving active treatment.  The June 2015 VA examination showed that the Veteran's voiding dysfunction no longer required the wearing of absorbent material or use of an appliance.  The voiding dysfunction caused daytime voiding intervals between 1 and 2 hours as well as nighttime awakening to void 3 to 4 times.  Moreover, the record contains no evidence of any local reoccurrence or metastasis of the Veteran's prostate cancer as of May 1, 2016.  

Under Diagnostic Code 7528, in the absence of local reoccurrence or metastasis, the Veteran's condition is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  Thus, a 100 percent rating for prostate cancer is not warranted when it is in remission.  The Veteran's reports of nighttime voiding intervals between 6 to 7 times support a 40 percent rating because the Veteran's predominate symptoms of urinary frequency is an accurate criterion on which to establish a rating for residuals of prostate cancer.  While not an entirely ideal way to function under the ordinary conditions of life and work, urinary frequency based on reports of nighttime voiding intervals shows a material improvement in the Veteran's disability compared to active prostate cancer.  

For the reasons set forth above, the Board finds that the reduction in the rating from 100 percent to 40 percent for service-connected residuals of prostate cancer, effective May 1, 2016, was proper.  Accordingly, the preponderance of the evidence is against the restoration of the 100 percent rating for prostate cancer.

TDIU

The Veteran essentially contends that he is unable to follow (maintain) a substantially gainful occupation due to symptoms and impairment caused by his service-connected disabilities.  

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  38 U.S.C. § 1155.  Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  Total disability may or may not be permanent.  38 C.F.R. § 3.340(a)(1).  Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating.  38 C.F.R. § 3.340(a)(2).

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances.  38 C.F.R. § 4.16(a), (b).

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).

If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Submission to the Director, Compensation Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  38 C.F.R. § 4.16(b).

In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).  In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91.  The issue is whether a veteran's service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).  Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability.  38 C.F.R. § 4.17(a).

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).  While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator.  As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder.  Moore, supra.  

The Veteran's June 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, lists prostate cancer, PTSD, and diabetes, which at the time included diabetic peripheral neuropathy of the bilateral upper and lower extremities in that rating, as the primary disabilities that prevent him from securing or following any substantially gainful occupation.  The diabetic peripheral neuropathy symptoms were subsequently awarded individual compensable ratings once objective findings were diagnosed.

From April 22, 2003, to March 8, 2006, the Veteran was only service-connected for one disability (PTSD) and in receipt of a 50 percent rating.  The Veteran became service-connected for a second disability (diabetes) and received a 20 percent rating, effective March 9, 2006.  As a result, the combined rating for these two disabilities during the period from March 9, 2006, to April 22, 2012, was 60 percent.  The Veteran's combined schedular disability rating is currently 90 percent since May 1, 2016.  The Veteran is service connected and in receipt of a 50 percent disability rating for PTSD, a 40 percent disability rating for residuals of prostate cancer, separate 20 percent disability ratings for peripheral neuropathy of the left and right upper extremities, and separate 10 percent disability ratings for peripheral neuropathy of the left and right lower extremities.  The Veteran was previously in receipt of  a 100 percent rating for prostate cancer from April 23, 2012, to April 30, 2016.  

The June 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, states that the Veteran last worked full-time in November 2003.  From 2006 to 2007, the Veteran's highest gross earnings per month from part-time employment were $884.00, which is not substantially gainful employment and does not reach or exceed the poverty threshold.  From 2005 to May 2014, the Veteran's highest gross earning per month from part-time employment was $259.00, which is also not considered substantially gainful employment and does not reach or exceed the poverty threshold.  

A 2016 form 21-4192 completed by the Veteran's former employer noted the Veteran had been employed from 1973 until 2015.  The type of work was described as reset specialist, setting product displays in stores.  The reason for termination was described as personal.  The form further noted that the Veteran actually retired in 2003 and started his retirement pension benefits but then returned later and worked part time until 2015.

Prior to April 23, 2012, the Veteran does not meet the schedular criteria for TDIU.  However, this period was referred to the Director of Compensation Service for extraschedular consideration under 4.16(b) and was denied in August 2016.  The August 2016 memorandum from the Director, Compensation Service, stated that the evidentiary record failed to demonstrate that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities prior to April 23, 2012.  The Director found that the symptomatology associated with PTSD, while productive of some social and occupational impairment, was not demonstrated to be so severe as to preclude employability.  Furthermore, the Director explained that the clinical evidence has also consistently shown the diabetes mellitus to have no impact upon daily activities or employment.  The Director concluded that the combination of these two disabilities does not exhibit functional loss with economic impairment that rendered the Veteran unemployable for the period prior to April 23, 2012.

As the claim was referred and reviewed by the Director of Compensation Service, the Board now has jurisdiction to consider whether the Veteran is entitled to TDIU on an extraschedular basis for the period prior to April 23, 2012.  See Kuppamala v. McDonald, 27 Vet. App. 447 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009).  In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence.  See Wages v. McDonald, 27 Vet. App. 233, 239 (2015).

After reviewing all the evidence of record for the period prior to April 23, 2012, the evidence does not show that the Veteran's service-connected disabilities rendered him unable to follow or secure substantially gainful employment.  

As previously stated, prior to April 23, 2012, service connection was in effect for only one service-connected disability (PTSD), rated 50 percent disabling from April 22, 2003; and diabetes mellitus, rated 20 percent disabling from March 9, 2006.  As a result, the combined rating for these two disabilities during the period from March 9, 2006, to April 22, 2012, was 60 percent.  

A VA psychiatric examination from October 2004 yielded a diagnosis of PTSD with a Global Assessment of Functioning (GAF) score of 50.  Mental status evaluation was unremarkable.  The Veteran reported depression, sleep disturbances, irritability, and a short temper.  He conveyed to the examiner that he had recently retired from his salesman job, after 29 years, due to increased conflicts with customers.  He stated that he experienced only two hours of restful sleep nighty with infrequent Vietnam-related nightmares.  He reported that his wife of 36 years was very supportive.  He indicated that he was in close contact and had a good family relationship with his three grown children.  He stated that he did not socialize except when attending occasional Veterans of Foreign Wars meetings, or if he went to church with his wife, and said he tried to help some of his neighbors.  He reported that his leisure pursuits were fishing and gardening.  The examiner assigned a GAF score of 50.  The examiner explained that this evaluation was based on the signs and symptoms on occupational and social functioning.  The examiner also reported that the Veteran's social functioning and enjoyment of leisure time activities had diminished since his retirement from his job and that he felt depressed, irritable. 

In March 2006, the Veteran underwent a VA examination, during which he reported that he had difficulty with his memory.  He reported that he experienced constant hypervigilance and exaggerated startle response.  He told the examiner that he had a lack of motivation and a lessened ability to derive pleasure from previously enjoyed activities.  He also said that he left his employment two and a half years ago due to his inability to get along with certain personnel.  The Veteran endorsed a prior history of excessive alcohol use, but that he substantially reduced his alcohol intake in the last few months.  He denied sleep disturbance, but reported a reduced appetite, hypervigilance, and exaggerated startle.  The Veteran's GAF score was 50.         
Upon review of the claims file, the examiner diagnosed PTSD, with minimal reported symptoms.  

VA outpatient treatment records dated in May 2006 through June 2009 demonstrate that the Veteran attended a monthly support group for his PTSD.  

A VA examination addressing the diabetes mellitus was conducted in August 2006.  The Veteran reported having two hypoglycemic reactions weekly; however, hospitalization was never required.  The diabetes was treated with oral medication.  He reported seeing a diabetic care provider every three to four months.  Diminished sensation was present in the feet and fingers.  The Veteran reported that he had not worked for three years, but did some random jobs like cutting grass and painting.  The examiner did not find that there were any functional limitations imposed by the Veteran's diabetes disability.

The Veteran underwent another VA examination in November 2006.  He reported depression, sleeping difficulty, and having isolated himself socially.  He stated that he did not have social contacts outside of his own family.  He avoided other people because he would become easily aggravated.  His recreational pursuits consisted of fishing and gardening.  Mental status evaluation was unremarkable.  The Veteran reported short-term memory loss, but showed no deficits upon examination.  PTSD was diagnosed and a GAF score of 50 was rendered.  Upon review of the claims file, the November 2006 VA examiner stated that the Veteran's PTSD symptoms had impeded his ability to sustain employment and form relationships outside of his immediate family.  The examiner also found the Veteran was compliant with group treatment for PTSD and reported some improvement in symptoms due to treatment.  The Veteran was found fully competent to manage his financial affairs.

A February 2010 VA outpatient treatment record demonstrates that the Veteran retired several years previously, but it was described as a "forced retirement."  He denied having any problematic relationships.  He reported that he was married and had three adult children, as well as several siblings.  He stated that he and his wife were involved in church activities.  The examiner noted that the Veteran continued to express symptoms of PTSD.    

A VA general medical examination was undertaken in April 2012.  The Veteran reported increased thirst and generalized weakness.  Clinical examination of the endocrine system was unremarkable.  No sensory deficits were evidenced.  Glucose was 125.  The examiner commented that the diabetes mellitus had no effect upon the Veteran's usual occupation or daily activities.

In April 2012, the Veteran underwent another VA examination.  At this time, he reported that he was still married to the same woman and had close family ties.  He stated that he had seven grandchildren, as well as good relationships with his grown children.  He noted that he saw some of his children and grandchildren once a month or so, and others less often due to the geographic distance.  He stated that he was retired since 2004.

On VA mental examination in April 2012, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to the following symptoms: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recalling events.  The examiner found that the Veteran did not have the following symptoms: impairment of short or long term memory, such as forgetting to complete tasks; difficulty in establishing and maintaining effective work and social relationships; inappropriate behavior; neglect of appearance; disorientation to time or place; panic attacks; anxiety; impaired judgment; impaired thought processes; illogical speech; impaired communication, or; impaired impulse control.  There was no evidence of suicidal or homicidal ideation, obsessive rituals, delusions, or hallucinations.  There was no evidence of the inability to carry out activities of daily living.  The Veteran's GAF score was 60.

The April 2012 VA examiner noted that the claims file was not available, but explained that the November 2006 VA examination report had been reviewed.  The examiner found that the Veteran did not meet the full criteria for PTSD at the time.  The examiner remarked that the Veteran's main symptoms were sleep disturbance and irritable mood, and noted that per the Veteran's report, some of his sleep disturbance was the result of his aching knee.  The examiner observed that the Veteran was retired, but kept busy around the house, to include engaging in gardening and cooking.  The examiner noted that the Veteran went to the gym and attended church regularly.  The examiner also noted the Veteran's report that he had a close relationship with his wife and family.  The examiner indicated that while the Veteran was currently retired and not seeking employment, if he did so, his PTSD symptoms "would probably interfere with work efficiency."  The examiner further explained that the Veteran "would benefit from a flexible schedule due to some sleep disturbances, and a job that did not require much interaction with the public due to [his] irritable mood with others."

In July 2012, the April 2012 VA examiner reviewed the Veteran's claims file again.  The examiner reiterated the Veteran's GAF score of 60, and noted that while the Veteran complained of some symptoms that could be attributed to PTSD, he did not meet the full criteria for PTSD at that time.  The examiner further reiterated that if the Veteran was to seek employment, his PTSD symptoms would probably interfere with work efficiency, and he would need to find a job that did not require much interaction with the public due to his irritable mood.  The examiner explained that the Veteran has difficulty coping with others in times of stress due to irritability.  In addition, the examiner stated that the Veteran's complaints of an occasionally depressed mood did not meet the criteria for a DSM-IV diagnosis of any type of mood disorder.  The examiner emphasized that she did not feel the Veteran's PTSD symptoms precluded employment at this time.  She explained that he would probably benefit from a flexible schedule due to some sleep disturbance, and a job that did not require much interaction with the public or others due to a tendency towards an irritable mood with others.

With regard to unemployability related to PTSD symptoms, the October 2015 VA examiner opined that he "[could] not consider the Veteran to be unemployable or even significantly affected by his PTSD-related symptoms, given the protracted, evidence-based treatment for his PTSD that he received from the Waco VAMC's PCT program."  The examiner explained, "There is very strong evidence that [the Veteran] participated actively in the Waco VAMC PCT (PTSD) treatment program for several years and, by [the Veteran's] own report, over the several years that he attended this program he gained solid coping skills to manage his PTSD-related symptomatology."  Moreover, the examiner found that the Veteran had the ability to function in a social and occupational environments with his currently identified relatively mild psychological disturbances.  The examiner also commented, "He is also eligible for supportive counseling and vocational assistance under his vocational rehabilitation (Voc Rehab) benefits.  Such Voc Rehab services could facilitate his attainment of employment and his effective functioning on any such job."  According to the examiner, "[The Veteran] would most likely perform better at a small operation or job site, where any of his social and anxiety problems would be minimal and tolerated, and where he could be surrounded by only a few unfamiliar people."  Lastly, the examiner found that if the Veteran chose to seek employment, "he would definitely benefit from returning to regular, supportive, and evidence-based mental health care at a VAMC."  The Board finds this medical opinion highly probative of a negative finding against granting an extraschedular TDIU rating for the period prior to April 23, 2012, based primarily on PTSD symptoms because the Veteran was not rendered unable to secure or follow substantially gainful employment.  The examiner noted that the Veteran's PTSD symptoms had improved while he was attending regular treatment sessions.  The symptomatology associated with PTSD, while productive of some social and occupational impairment, was not demonstrated to be so severe as to preclude employability.  

From April 22, 2003, to April 22, 2012, the Veteran's PTSD did not exhibit functional loss with economic impairment that rendered the Veteran unable to secure or follow substantially gainful employment.  Furthermore, from March 9, 2006 to April 22, 2012, the clinical evidence has also consistently shown the Veteran's diabetes mellitus to have no impact upon daily activities or employment.  

Based on the foregoing, the evidentiary record fails to demonstrate that these service-connected disabilities, when viewed singularly or in combination, do not exhibit functional loss with economic impairment that rendered the Veteran unable to secure or follow substantially gainful employment prior to April 23, 2012.  

From April 23, 2012, to April 30, 2016, the Veteran was in receipt of a 100 percent rating for prostate cancer; thus, TDIU was moot during this period.  See Green v. West, 11 Vet. App. 472, 476 (1998) (if a 100 percent schedular rating is warranted, a veteran is not also entitled to TDIU).  In addition, for the period since May 1, 2016, the Board has considered the VA examiners' opinions and the January 2015 vocational consultation to the extent that they show the degree of impairment caused by the Veteran's service-connected disabilities.  The aforementioned symptoms and functional impairments due to the service-connected disabilities viewed in relation to past work experience, education, and training, become more significant when evaluating the Veteran's inability to maintain substantially gainful employment.  

After reviewing all the evidence of record for the period since May 1, 2016, the evidence is at least in equipoise on the question of whether the combination of all the service-connected disabilities have prevented the Veteran from maintaining substantially gainful employment.  The lay and medical evidence shows that since May 1, 2016, it is the totality of the Veteran's service-connected disabilities that render him totally unemployable for purposes of individual unemployability benefits.  See 38 C.F.R. § 4.14(a) (TDIU is to be based on all service-connected disabilities).

A January 2015 employability evaluation from vocational consultant, M. LaRaia, M.A., LRC, CCM, conveys that the Veteran's service-connected disabilities have caused him to be unable to engage in any form of substantially gainful employment as "he does not possess the tenets necessary to sustain employment over any course of time ... [to include] the ability to arrive at work on a timely and consistent basis; maintaining a production rate; perform work to acceptable and established standards; maintain concentration, persistence and pace; and interact appropriate with coworkers and supervisors."  The vocational consultant noted that the Veteran is limited in his standing and fine motor skills, fingering, and handling due to the symptoms caused by his diabetic peripheral neuropathy conditions of the upper and lower extremities.  The Veteran was noted to be further limited by his residuals of prostate cancer due to frequent urination needs.  He was also found to suffer from ongoing fatigue due to his inability to obtain adequate sleep.  His PTSD symptoms were found to limit his interaction with others.  The Veteran's medications used to treat his service-connected disabilities were noted to cause drowsiness.  His driving or operation of dangerous machinery was recommended to be limited due to his fatigue, compromised concentration, and side effects from medication.  

The vocational consultant further commented that the Veteran's inability to remain on his feet for prolonged periods of time would physically limit him to work in a sedentary position.  In conclusion, the vocational consultant opined that the Veteran's overall condition also precludes work that requires "the operation of dangerous tools and equipment, interacting with the general public, work activities that require ongoing handling/fingering/feeling due to neuropathy, jobs that require ongoing visual concentration, jobs requiring team work or working in close proximity to others, as well as jobs requiring him to interact appropriately with others."  With regard to sedentary employment, the June 2014 VA examiner opined that the Veteran's residuals of prostate cancer impact his ability to work because frequent urination at night makes him sleepy during the day and the medication he takes for hot flashes causes diarrhea and/or constipation.  The VA examiner further noted that the Veteran's frequent urination also impacts his ability to work because it would require him to be within close range of a bathroom.  The June 2015 VA examiner also found that the prostate cancer residuals affected the Veteran's ability to work due to frequent urination.

Previous VA examination opinions indicated that the Veteran was able to work; however, these opinions, while informative, are not determinative of the adjudicative decision that the Board is required to make, based on consideration of all lay and medical evidence, and consideration of the functional limitations of all service-connected disabilities, rather than reliance only on the opinion of a VA examiner.  Id.  However, the Board finds that the aforementioned reports are consistent with the evidence of record and very probative in finding that the Veteran is unable to maintain substantially gainful employment based on the totality of the service-connected disabilities since May 1, 2016.  The symptoms and occupational impairments caused by each of the service-connected disabilities has also been recognized in various VA adjudications that assigned rating percentages for each of the service-connected disabilities using Part 4 rating criteria, and provided reasons and bases identifying the symptoms and functional limitations that supported the compensable ratings assigned to each of the service-connected disabilities.  See Geib, 733 F.3d at 1354 (holding that VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion).  

In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the service-connected disabilities are of sufficient severity to render the Veteran unable to follow substantially gainful employment consistent with his educational and work background for the period since May 1, 2016.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  




SMC Consideration

A veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Moreover, VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).  Relevant to this appeal, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue.  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).  VA has recently expressly adopted the Akles rule for all complete claims, stating "VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., . . . entitlement to [SMC] under 38 C.F.R. § 3.350...)."  38 C.F.R. § 3.155(d)(2) (2017) (applicable to claims filed on and after March 24, 2015).  

As previously discussed in this decision, the Veteran is in receipt of the following disability ratings: 50 percent for PTSD; 40 percent for residuals of prostate cancer; 20 percent for diabetes mellitus; 20 percent for peripheral neuropathy of the left upper extremity; 20 percent for peripheral neuropathy of the right upper extremity; 10 percent for peripheral neuropathy of the left lower extremity, and; 10 percent for peripheral neuropathy of the right lower extremity.  The Veteran's total disability rating is currently 90 percent.  The Veteran was previously in receipt of  a 100 percent rating for prostate cancer from April 23, 2012, to April 30, 2016, which included SMC based on additional service-connected disabilities independently ratable at 60 percent or more.  As a result of this decision, TDIU is granted, effective May 1, 2016, based on the totality of the Veteran's service-connected disabilities.    

In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s).

In Bradley, the veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating.  See Bradley, 22 Vet. App. at 293.  The Court determined, however, that "the Secretary should have assessed whether [the Veteran's] TDIU rating was warranted based on his PTSD alone before substituting a combined total rating for his TDIU rating."  Id. at 294.  The Court reasoned that "a TDIU rating for PTSD alone would entitle [the Veteran] to SMC  benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating."  Id.  Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s).  Id.

This case is distinguishable from Bradley because, here, the Veteran is not in receipt of a less than 100 percent schedular disability rating for any one service-connected disability upon which a TDIU is granted.  Rather the 100 percent schedular disability rating assigned from May 1, 2016 is based on the combined ratings of multiple service-connected disabilities.

A TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114(s).  See Buie v. Shinseki, 24 Vet. App. 242 (2010).

In this case, the Board's decision herein to grant TDIU reflects that the benefit is granted based upon all of the Veteran's service-connected disabilities.  The VA examinations of record as well as the private vocational assessment support the Board's decision that TDIU is not based solely on one service-connected disability.  The vocational consultant, in particular, commented that the totality of the Veteran's physical and mental health disabilities greatly affect his employment situation.  In addition, the evidence of record does not reflect that any single service-connected disability has rendered him unable to secure or follow a substantially gainful occupation.  Furthermore, unlike the Veteran's prior award for SMC based on housebound criteria, the Veteran is not entitled to SMC since May 1, 2016, because he does not currently have a single disability rated at 100 percent with additional disabilities rated at 60 percent or more involving different anatomical segments or bodily systems.  See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  The preponderance of the evidence, as previously detailed above, is also against a finding that the Veteran is factually housebound due to his service-connected disabilities.   

In conclusion, the preponderance of the evidence weighs against the Veteran's claim of entitlement to special monthly compensation at the housebound rate.  As such, there is no reasonable doubt to be resolved, and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, 28 Vet. App. at 366 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  The Veteran's appeal, in part, arises from an appeal of the initial evaluation following the grant of service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities.  Once service connection is granted, the claim is substantiated, and additional notice is not required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims.  For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  Such notice was provided in the letter sent to the Veteran in September 2004.  The Veteran was also provided with multiple VCAA notice letters regarding development of his total disability based on individual unemployability claim since as early as April 2005.  Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed.

Specific to the Veteran's rating reduction claim, certain notice considerations apply when reduction in the evaluation of a service-connected disability is contemplated.  See 38 C.F.R. § 3.105(e).  As discussed in greater detail above, the RO complied with the particular provisions of 38 C.F.R. § 3.105(e) as well as the general notice provisions of the VCAA.  The Veteran was also given prior notice regarding the regulations and time limits applicable to his reduced rating.  As a result, the Board finds that VA has fulfilled its duties to notify and assist the Veteran.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the reduction claim.  

Next, VA has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").  Here, service records have been obtained, as have records of VA and private treatment.  Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development.

The Veteran was afforded VA examinations with respect to his claim.  During the examinations, the VA examiners conducted physical examinations of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions made, and reached conclusions and offered opinions based on history and examinations that are consistent with the record.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

As noted in the Introduction, the Board previously remanded this claim in January 2017.  The Board instructed the AOJ to request VA treatment records, refer an extraschedular rating for PTSD to the Director of Compensation Service, issue a SOC for the reduced prostate cancer rating and diabetic peripheral neuropathy ratings, and then readjudicate the claims on appeal with consideration of the additional evidence associated with the claims folder.  Since that time, VA issued a new rating decision and supplemental statement of the case that considered the additional, new evidence.  As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision.  Substantial compliance, rather than strict compliance, is required.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). 


ORDER

A rating in excess of 50 percent for PTSD, to include on an extraschedular basis, is denied.

An initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity is denied.

An initial rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity is denied.

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

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

The rating reduction from 100 percent to 40 percent for service-connected residuals of prostate cancer, effective May 1, 2016, was proper.

A TDIU prior to April 23, 2012, is denied.

A TDIU from May 1, 2016, is granted.  

Entitlement to SMC is denied.


______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs