Citation Nr: 21071485 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-17 576 DATE: November 30, 2021 ORDER Service connection for low back disability, on the basis of aggravation by service-connected disability, is granted. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A rating in excess of 40 percent rating for residuals a gunshot wound of the left hip, with injury to Muscle Group XVII, is denied. A rating in excess of 20 percent rating for diabetes mellitus with erectile dysfunction is denied. FINDINGS OF FACT 1. Low back disability was chronically worsened by service-connected left hip disability. 2. The Veteran's PTSD is not productive of occupational and social impairment with deficiencies in most areas. 3. The Veteran's residuals of a gunshot wound of the left hip results in no more than a moderately severe injury to Muscle Group XVII. 4. Management of the Veteran's diabetes does not require the regulation of activities. CONCLUSIONS OF LAW 1. Low back disability was aggravated by service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 38 C.F.R. §§ 3.303, 3.310(a). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for a rating in excess of 40 percent for residuals of a gunshot wound of the left hip, with injury to Muscle group XVII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.55, 4.56, 4.73, DC 5317. 4. The criteria for a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1966 to August 1969, including in the Republic of Vietnam. He received various decorations evidencing combat including the Combat Infantry Badge and the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2019. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Lower Back Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. The Veteran is service-connected for the residuals of a gunshot wound of the left hip. The Veteran asserts that his low back degenerative arthritis is related to his left hip disability. The evidence does not show, and the Veteran does not contend, that his low back disability is related to service. STRs reveal no low back complaints, and at the February 2017 VA back examination the Veteran denied that he had a back injury during service. The Board also finds that there is no competent medical evidence indicating that the Veteran's low back disability was caused by his left hip disability, and the October 2020 VA spine examiner specifically stated that no such relationship existed. The Board does find, however, that the medical evidence tends to show that the Veteran's low back disability was chronically worsened by the service-connected left hip disability. Records such as a September 1997 VA examination have noted that the Veteran has walked with a limp for years due to his left hip injury, and the Veteran's SSA records have noted long-time complaints of back pain. An April 4, 2008 VA treatment record noted how movement of the Veteran's left hip resulted in pain the left upper buttock area. Significantly, the Board observes that in the assessment portion of that record the examiner noted that the Veteran's left buttock pain in the same section as the Veteran's low back arthritis, arguably suggesting a connection. Although the October 2020 VA examiner essentially indicated that the Veteran's low back disability was not aggravated by left hip disability, the Board notes that the opinion contained limited rationale and had little or no discussion of the Veteran's pertinent medical records. Moreover, the opinion did not dissociate the Veteran's left hip's functional impairment's impact upon the low back. Although the October 2020 VA examiner did not provide or establish a baseline level of disability for the low back before it was worsened by the service-connected left hip disability, the Board finds that this is primarily a rating consideration, and the language of 38 C.F.R. § 3.310 does not forbid an award of service connection in the current situation, and that code provision is not deemed to preclude the grant of service connection here. It will later be determined if evidence of quantifiable aggravation existed to support a compensable evaluation, which is not the issue immediately before the Board. See generally, Ward v. Wilkie, 31 Vet. App. 233 (2019). In summary, the evidence of record reveals that service connection for aggravation of the low back arthritis is warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. PTSD A 50 percent rating for PTSD will be assigned when there is occupational and social impairment with reduced reliability and productivity. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). A September 2008 RO decision granted the Veteran service connection for PTSD and assigned a 30 percent rating, effective November 6, 2007. A September 2013 RO decision increased the Veteran's current PTSD disability rating to 50 percent, effective April 6, 2012. The Veteran has undergone VA PTSD examinations in July 2013 and September 2020. Symptoms in July 2013 were depressed mood, anxiety, sleep impairment, flattened effect, and an intermittent inability to perform activities of daily living, including maintenance of personal hygiene. Symptoms in September 2020 were noted as sleep impairment. A review of the evidence does not reveal symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, or spatial disorientation. Further, nothing approaching homicidal ideation, hallucinations, or delusionary thinking, have been a part of the Veteran's psychiatric symptomatology. Although neglect of hygiene was indicated at the July 2013 VA PTSD examination, such has not been shown in the many VA treatment records, including September 2017 and November 2019 VA care provider records. The findings do not reveal symptoms suggestive of a speech or cognitive disorder. As for the Veteran's social functioning, the Veteran has maintained a marriage of many years and was residing with his daughters. No examiner has noted an inability of the Veteran to establish and maintain effective relationships. The Veteran has not claimed that he has limited his social activities due to any PTSD symptoms. As for occupational functioning, the Veteran has been retired for 10 years but still worked part-time as a truck driver. The July 2013 VA PTSD examiner stated that the Veteran's PTSD was productive of occupational and social impairment with just occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, the September 2020 VA PTSD examiner indicated that the Veteran's PTSD symptoms were not severe enough to interfere with occupational and social functioning. In sum, a review of the clinical findings and Veteran's own statements do not reveal symptoms of severity, duration, or frequency so as to more nearly approximate the criteria for a rating of 70 percent. The Veteran's disability picture does not reflect such either. As such, a rating in excess of 50 percent for PTSD is not warranted. Left Hip Muscle Injury Under 38 C.F.R. § 4.73, DCs 5301 to 5323 prescribe the evaluation of disabilities manifested by muscle injuries based upon the classifications of slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d)(1)-(4). The corresponding level of severity of a service-connected muscle injury is determined to a significant extent by the presence or absence of cardinal signs and symptoms of muscle disability, which consist of loss of power, lowered threshold of fatigue, weakness, pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe as (in pertinent part) follows: (3) Moderately severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d). For the entire appeal period, the Veteran's residuals of a gunshot wound of the left hip is evaluated as 40 percent disabling pursuant to DC 5317, which pertains to injuries affecting Muscle Group XVII. Such muscle group affects the extension of the hip, abduction of the thigh, elevation of the opposite side of the pelvis, tension of the fascia lata and iliotibial band, acting with Muscle Group XIV in postural support of the body steadying the pelvis upon the head of the femur and condyles of the femur on the tibia. It includes the pelvic muscles: (1) girdle group 2: gluteus maximus; (2) gluteus medius; and (3) gluteus minimus. Under Diagnostic Code 5317, a 40 percent rating is warranted for a moderately severe disability and a 50 percent rating is provided for a severe disability. Such also directs that a determination as to entitlement to special monthly compensation under 38 C.F.R. § 3.350 (a)(3) if such disability is bilateral. In this respect, the Board notes the Veteran's left hip muscle disability is of the left side only and, therefore, consideration for special monthly compensation is not warranted. Therefore, the evidence must demonstrate a severe disability to warrant a higher rating than that currently assigned for the Veteran's residuals of left hip muscle injury. Records indicate that the Veteran incurred a gunshot wound of the left lower extremity and pelvis in March 1967. At a VA examination in September 1997 the Veteran stated that he was wounded by a 30-caliber rifle wound while serving in Vietnam in March 1967. He said he was hospitalized for about 4 months and was initially treated with packing and debridement of the wound. The wound was closed but had to be re-opened likely due to an infection. He was told by various doctors that he had no bone injury from the gunshot wound. The Veteran's STRs do not contain detailed entries concerning the Veteran's left hip injury. The STRs reveal that he was seen in July and August 1969 for complaints of pain in the left hip area and left buttock. Anterior and posterior scars were reported. VA examination of the left hip in November 1969 (shortly following service) revealed muscle loss of the gluteus maximus muscle posteriorly behind the greater trochanter of the disc region. Deformity of the muscle appeared to indicate muscle absence resulting in an approximately 12 inch decrease in size of the left hip. Range of motion of the left hip was normal and was without pain. X-rays in November 1969 revealed tiny punctate densities scattered about the soft tissue of the thigh and probably the buttock, probably represent metallic foreign bodies. These are 1 mm. or less in diameter. However, November 1970 X-rays revealed no retained metallic foreign bodies in the left hip region. At an October 2020 VA muscle injuries examination, the diagnosis was left hip gunshot wound, muscle group XVII, with degenerative joint disease. The left hip wound was classified as a penetrating muscle injury. His current symptoms were left hip pain that was worse with prolonged walking. The Veteran was not currently receiving any treatment, medications, or surgery for the left hip disability. The Veteran had minimal scars associated with his left hip muscle injury and no fascial defects associated with the left hip muscle injury. The examiner specifically stated that there were no cardinal signs of muscle disability, including loss of power, weakness, fatigue, and impairment of movement. Muscle strength testing in July 2013 and October 2020 was normal (5/5) for the affected muscle group, and there was no muscle atrophy of the injured muscle group. The Veteran used a cane on a regular that was due to his left hip arthritis. Left hip functioning was not so diminished that amputation with prosthesis would serve the Veteran equally well. X-rays revealed no retained metallic fragments in the muscle tissue. Based on the above, the Board finds the evidence does not demonstrate that the Veteran's residuals of left hip muscle injury results in a severe injury. The evidence does not reveal complaints of cardinal signs and symptoms of a muscle disability or the objective findings that generally constitute severe disability. Moreover, the record does not contain X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma. In this regard, it is noted that although a November 1969 X-ray report noted probable metallic fragments, radiographic studies in November 1970 and October 2020 found no retained metallic fragments. Although acknowledging the Veteran's competent reports of his symptomatology, the Board finds the medical evidence is most probative as it considers the Veteran's reported symptoms and provides clinical evaluation of the disability, to include the functional impairment caused thereby, as contemplated by the rating criteria. Consequently, the Board finds a rating in excess of 40 percent for residuals of left hip muscle injury is not warranted. Diabetes Mellitus The Veteran has been assigned a 20 percent rating for his diabetes pursuant to 38 C.F.R. § 4.119, DC 7913. Such rating criteria provides that a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (defined within the diagnostic code as avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating; each criterion listed in a rating must be met or more closely approximated in order to warrant such a rating. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component. As noted at the October 2020 VA diabetes examination, the Veteran's diabetes requires one injection of insulin per day. The Veteran visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis and hypoglycemia, and hospitalization had not been required for episodes of ketoacidosis or hypoglycemic reactions the prior 12 months. The Veteran had no unintentional weight loss or loss of strength attributable to his diabetes. In order to warrant a higher rating in the instant case, the evidence must, at a minimum, demonstrate the need for daily injection of insulin, restricted diet, and regulation of activities. Upon review, the Board finds such criteria have not been met at any time during the appeal period. As noted by VA examiners, including in August 2012 and October 2020, the Veteran has not required regulation of activities as part of his medical management for his diabetes. Consequently, a rating in excess of the currently assigned 20 percent is not warranted at any time during the period on appeal. 38 C.F.R. § 4.119, DC 7913. With regard to diabetic complications, the Board finds there are no complications of his diabetes that warrant separate ratings other than his bilateral lower extremity peripheral neuropathy, left upper extremity peripheral neuropathy, and diabetic retinopathy with cataracts, which are all have compensable ratings. The Veteran's erectile dysfunction, which is rated in connection with his diabetes, is noncompensable in nature. The medical evidence does not show that his erectile dysfunction is manifested by deformity of the penis so as to warrant a compensable rating under DC 7522. Further, at the October 2020 erectile dysfunction examination the Veteran reported no penile or testicular abnormality. Other Increased Rating Considerations The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (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). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.