Citation Nr: 21007576 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-33 801 DATE: February 10, 2021 ORDER Entitlement to an effective date earlier than April 15, 2011, for the award of service connection for hemorrhoids is denied. Entitlement to an effective date earlier than April 15, 2011, for the award of service connection for fecal incontinence is denied. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome is denied. Entitlement to an initial compensable rating for hemorrhoids is denied. Prior to January 23, 2018, entitlement to an initial rating in excess of 10 percent for fecal incontinence is denied. Effective January 23, 2018, entitlement to an initial rating of 30 percent for fecal incontinence is granted. Entitlement to an initial rating in excess of 10 percent for type 2 diabetes mellitus is denied. Effective April 15, 2011, entitlement to a rating of 70 percent for major depression with PTSD is granted. Effective April 15, 2011, entitlement to a finding of total disability based on individual unemployability (TDIU) is granted. Effective April 15, 2011, entitlement to an award of basic eligibility for Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. REMANDED Entitlement to an effective date earlier than February 21, 2006 for the award of service connection for multiple myeloma is remanded. Entitlement to an effective date earlier than May 15, 2013 for the award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is remanded. FINDINGS OF FACT 1. An informal claim for TDIU was received by VA on April 15, 2011. There were no prior unadjudicated claims. 2. The Veteran is in receipt of the maximum schedular rating for irritable bowel syndrome. 3. The Veteran’s hemorrhoids are manifested by external hemorrhoids characterized as mild to moderate; objective evidence of large, thrombotic or irreducible hemorrhoids, or excessive redundant tissue are not shown. 4. Prior to January 23, 2018, the Veteran’s fecal incontinence is manifested by constant slight, or occasional moderate leakage. 5. From January 23, 2018, the Veteran’s fecal incontinence is manifested by occasional involuntary bowel movements, necessitated by the use of a pad. Extensive leakage and fairly frequent involuntary bowel movements is not shown. 6. The Veteran’s type 2 diabetes mellitus is manageable by restricted diet only; but not by required use of insulin and restricted diet, or oral hypoglycemic agent and restricted diet. 7. During the period on appeal, the Veteran’s major depression with PTSD is manifested by social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; total occupational and social impairment has not been shown. 8. From April 15, 2011, the Veteran’s service-connected major depression with PTSD precluded him from securing or following a substantial gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 15, 2011, for the award of service connection for hemorrhoids are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to April 15, 2011, for the award of service connection for fecal incontinence are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for a rating in excess of 30 percent for irritable bowel syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7319. 4. The criteria for an initial compensable rating for hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7336. 5. Prior to January 23, 2018, the criteria for an initial rating in excess of 10 percent for fecal incontinence are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7332. 6. From January 23, 2018, the criteria for an initial rating of 30 percent for fecal incontinence are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7332. 7. The criteria for an initial rating in excess of 10 percent for type 2 diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107 ; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. 8. From April 15, 2011, the criteria for a rating of 70 percent for major depression with PTSD are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411-9434. 9. From April 15, 2011, the criteria for TDIU, due to service-connected major depression with PTSD alone, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 10. From April 15, 2011, the criteria for the award of entitlement to DEA benefits under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 1967 to February 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from July 2012, March 2014, May 2016, and August 2018 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In April 2018, the Board remanded the claims of entitlement to an increased rating for irritable bowel syndrome, an increased rating for multiple myeloma, an increased rating for major depression with PTSD, an initial increased rating for type 2 diabetes mellitus, and entitlement to a TDIU prior to October 12, 2013. Upon the return of the appeals to the Board in April 2019, entitlement to an increased rating for irritable bowel syndrome, an initial increased rating for type 2 diabetes mellitus, and a compensable rating for multiple myeloma prior to May 15, 2013 were denied. The Board also remanded the issues of entitlement to an effective date earlier than February 21, 2006 for the award of service connection for multiple myeloma, to include on the basis of clear and unmistakable error (CUE) in an August 2003 rating decision, and entitlement to a TDIU prior to May 15, 2013. In an October 2019 decision, the Board vacated the April 2019 Board decision and its remand directives. Thereafter, the Board, in a June 2020 decision, in pertinent part, denied entitlement to a compensable rating for multiple myeloma prior to May 15, 2013. The Board also remanded the Veteran’s claims of entitlement to an increased rating for irritable bowel syndrome, an initial increased rating for type 2 diabetes mellitus, entitlement to a TDIU prior to May 15, 2013, and entitlement to an effective date earlier than February 21, 2006 for the award of service connection for multiple myeloma, to include on the basis of CUE in an August 2003 rating decision. The Board directed that the issue of CUE in the February 1971 decision be adjudicated by the agency of original jurisdiction (AOJ) in the first instance. As such, the matters again are before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). At this time, the Veteran is within the time period to pursue an appeal of the adverse September 2020 rating decision which denied the motion for CUE in an August 2003 rating decision. The modernized review system under the Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The adverse August 2020 rating decision constitutes an initial decision to which AMA applies. Under AMA, appellate review at the Board is initiated by a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). 38 C.F.R. §§ 20.201, 20.202. As that form has not been received, this issue is not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. To the extent that the Veteran’s representative asserted CUE in an August 2003 rating decision in the context of the Veteran’s earlier effective date claim in an April 2014 Notice of Disagreement, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). The Veteran’s CUE motion is not inextricably intertwined with the current earlier effective date appeal, as that matter may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran’s motion for revision of an August 2003 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. This appeal is limited to the issues on the title page. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case.  Appropriate notice was provided in July 2011.       With regards to the Veteran’s hemorrhoids, fecal incontinence, and type 2 diabetes mellitus, these appeals arise from the Veteran’s disagreement with the initial ratings assigned following the grants of service connection. Where an underlying claim for service connection has been granted and there is disagreement as to “downstream” questions, the claim has been substantiated and there is no need to provide additional notice or address prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and VA outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have identified any other shortcomings in fulfilling VA’s duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than April 15, 2011 for the awards of service connection for hemorrhoids and fecal incontinence. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  See 38 U.S.C. § 5110(a).   Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form.  79 Fed. Reg. 57660 (Sept. 25, 2014).  As the claim in question was earlier than this, the amended provisions do not apply.   Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  An informal claim was any communication or action indicating an intent to apply for one or more benefits.  38 C.F.R. § 3.155(a).  Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran’s claim is April 15, 2011, the receipt date of the Veteran’s informal claim for a TDIU. The evidence of record reflects that the Veteran submitted a claim of service connection for “bowels” in an Application for Compensation (VA 21-526), which was received by the RO on August 12, 1971. Service connection for intermittent diarrhea was granted by the RO in a November 1971 rating decision, effective February 27, 1971, the day following separation from active service. The Veteran did not file a timely Notice of Disagreement challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. Thus, the November 1971 rating decision became final. Following a February 1974 VA examination, the RO, in a March 1974 rating decision, reduced the Veteran’s rating to 10 percent, effective June 1, 1974. As with the November 1971 rating decision, the Veteran did not file a timely Notice of Disagreement challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. Therefore, the March 1974 rating decision also became final. Thereafter, in September 2002, the Veteran submitted an informal increased rating claim. The RO, in a February 2003, recharacterized the Veteran’s diarrhea disability as irritable bowel syndrome, and increased the rating to 30 percent, effective September 20, 2002. The Veteran did not file a timely Notice of Disagreement challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. Therefore, February 2003 rating decision became final. In April 2003, the Veteran submitted a subsequent informal claim for an increased rating for his digestive system disability. In an August 2003 rating decision, the RO continued the 30 percent rating. The Veteran did not file a timely Notice of Disagreement challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. Therefore, the August 2003 rating decision is also final. The record subsequently reflects that the Veteran submitted an informal claim for a TDIU, received by the RO on April 15, 2011. As indicated by a June 2011 VCAA letter, the RO characterized the claim as one for increased ratings for the Veteran’s service-connected disabilities, to include irritable bowel syndrome. The RO, in a July 2012 rating decision, continued the 30 percent rating. The Veteran submitted a timely Notice of Disagreement in December 2012, and perfected his appeal in September 2014 following the issuance of an August 2014 statement of the case. Following the submission of the September 2014 VA Form 9, the Veteran filed a Fully Developed Claim for “colon issues,” received by the RO on April 8, 2015. In April 2018, the Board remanded the issue of entitlement to a rating in excess of 30 percent for irritable bowel syndrome. Following the Board’s April 2018 remand, the RO, in an August 2018 rating decision, granted service connection for hemorrhoids as secondary to service-connected irritable bowel syndrome, effective April 15, 2011, and service connection for fecal incontinence as secondary to service-connected irritable bowel syndrome, effective July 25, 2018. In February 2019, the Veteran timely submitted a Notice of Disagreement regarding the assigned effective dates for the awards of hemorrhoids and fecal incontinence. The RO, in an April 2020 rating decision, awarded an earlier effective date of April 15, 2011 for the grant of service connection for fecal incontinence. No prior unadjudicated claims were outstanding. Service connection for hemorrhoids and fecal incontinence are service connected as secondary to the Veteran’s irritable bowel syndrome. Therefore, the Board finds that the proper effective date for the awards of service connection for hemorrhoids and fecal incontinence is April 15, 2011, the receipt date of the Veteran’s informal claim for a TDIU, which was construed as a claim for increased rating in his service-connected gastrointestinal issues. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.    In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).    Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.    The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).    VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).    Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).    Irritable bowel syndrome The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected irritable bowel syndrome. Since September 20, 2002, the Veteran is in receipt of a 30 percent rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319, the maximum evaluation assignable under that Diagnostic Code. To the extent that the Veteran has endorsed digestive symptoms, manifestations, and impacts outside of the rating criteria, as noted by the Board in its April 2018 remand, service connection has been granted for hemorrhoids and fecal incontinence and thus are already contemplated by their respective assigned ratings; there are no unaccounted for manifestations. The schedular criteria must be considered adequate. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, the claim for a rating in excess of 30 percent for irritable bowel syndrome must be denied. Hemorrhoids The Veteran contends that he is entitled to an initial compensable rating for his hemorrhoids. The Veteran’s hemorrhoids are currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7336, as noncompensable, effective April 15, 2011. Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Id. The evidence of record reflects that the Veteran was afforded a VA examination in July 2011. The Board notes that the VA examination report indicated that no hemorrhoids were present. Outpatient treatment records dated June 2015 indicate that the Veteran underwent an endoscopy. The report noted internal and external hemorrhoids. Subsequent VA treatment records dated May 2017 referenced hemorrhoids. VA emergency department records dated April 2017 indicate that the Veteran presented with rectal bleeding. Records note that the Veteran was prescribed ProctoFoam. In an August 2017 VA examination for irritable bowel syndrome, the Veteran endorsed an aggravation of hemorrhoids, for which the Veteran treated with witch hazel pads and ProctoFoam. Thereafter, in a subsequent VA examination dated July 2018, the Veteran reported “a little bit” of rectal bleeding on wiping about once or twice a month without any palpable hemorrhoids at the time of the examination. The Veteran noted that it occurred “randomly.” He stated that an uncomfortable, external hemorrhoid was removed about 15 years prior. The VA examiner attributed the Veteran’s complaints to slight rectal irritation. The examination report further referenced the Veteran’s treatment of hydrocortisone foam and cream, Boudreaux’s butt paste, Desitin, witch hazel, baby wipes with aloe, and bag balm for rectal irritation. Subsequent VA records dated September 2018 reflect that the Veteran displayed external hemorrhoids at “4 and 9 o’clock” and palpable internal hemorrhoids. Thereafter in May 2019, the Veteran endorsed bleeding from his hemorrhoids. Treatment notes from May 2019 also indicated that the Veteran did not have external hemorrhoids. An April 2020 note indicated that the Veteran’s hemorrhoids are aggravated by the prescribed lenalidomide for his multiple myeloma. Throughout the period on appeal, the Veteran’s hemorrhoids are manifested by mild or moderate, internal and external hemorrhoids. The evidence of record, however, does not show that the Veteran’s hemorrhoids resulted in large, thrombotic, or irreducible, hemorrhoids with excessive redundant tissue and evidencing frequent recurrences, or with persistent bleeding, secondary anemia, or fissures. Therefore, the Board finds that an initial compensable rating for hemorrhoids is not warranted. Fecal incontinence The Veteran contends that he is entitled to an initial rating in excess of 10 percent prior to July 25, 2018 and an initial rating in excess of 30 percent from July 25, 2018 for his fecal incontinence. The Veteran’s fecal incontinence is currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7332. Under Diagnostic Code 7332, for the rectum and anus, impairment of sphincter control, a noncompensable rating is warranted for healed or slight impairment of sphincter control, without leakage. A 10 percent rating is warranted for constant, slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. The Board notes that in a July 2011 VA examination, the Veteran endorsed fecal urgency. He further noted that he managed his bowel habit via dieting and that he experienced no difficulties when he ate well. Thereafter, the record reflects that the Veteran was afforded a VA examination in August 2017. The Veteran reiterated complaints of fecal urgency. The Veteran reported that he was incontinent “for the first time last week” but did not wear pads. The examination report indicated that the Veteran had occasional incontinence. VA telephone records dated January 23, 2018 reflect that the Veteran endorsed continuous liquid loose stools multiple times throughout the day to a VA clinician. He reported that he considered not taking his prescribed chemotherapy medication because it was the cause of the diarrhea. The Veteran noted that it was so bad that he could not leave the house. Records from this date reflect that the Veteran was prescribed Depend Guards incontinence liners. In a subsequent July 2018 VA examination, the Veteran stated that he had to rush to the restroom with every bowel movement. He reported that he leaks a little bit of loose stool occasionally sometimes if he passes gas and has loose stool in his rectum. The Veteran noted that this occurred twice the month prior and that he needed to change his underwear and clothes. He stated that he had tried pads in his underwear but did not like the feeling of the pads and did not use them as of the date of the examination. In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran’s award of a 30 percent rating for fecal incontinence is January 23, 2018, the earliest date as of which it is factually ascertainable that an increase in disability had occurred. Prior to January 23, 2018, the evidence of record reflects that the Veteran had constant, slight, or occasional moderate leakage with respect to his fecal incontinence. Indeed, at no point prior to January 23, 2018 did the Veteran experience occasional involuntary bowel movements that necessitated the use of a pad. The reported August 2017 incident appears to have been isolated, without repetition, for some time, and had not prompted use of pads. Therefore, the Board finds that an initial rating of 10 percent for fecal incontinence is warranted for the period prior to January 23, 2018, and an initial 30 percent rating is warranted thereafter. Diabetes mellitus The Veteran contends that he is entitled to an initial rating in excess of 10 percent for type 2 diabetes mellitus. The Veteran’s type 2 diabetes mellitus is currently rated under Diagnostic Code 7913, covering diabetes mellitus, and is assigned a 10 percent rating, effective April 15, 2011. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. Id. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is warranted when the diabetes requires 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. Id. A 100 percent rating is warranted when the diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. Id. The rating criteria for diabetes are successive. “Successive” rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). “Regulation of activities” is defined by Diagnostic Code 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 36364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). Moreover, the requirement, like the other criteria, is tied to control of blood sugar, not simply physical capacity. To interpret it otherwise would run afoul of prohibited pyramiding. 38 C.F.R. § 4.14. Based upon the evidence of record, the Board finds that an initial evaluation in excess of the currently assigned 10 percent for type 2 diabetes mellitus is not warranted. Further, neither the Veteran nor his representative have directed attention to specific evidence or put forth an argument that would show that a higher initial rating is warranted. The record reflects that the Veteran was afforded a VA examination in July 2011. The VA examiner referenced the Veteran’s 2006 A1c level of 6.6 percent, which is indicative of a diagnosis of diabetes. The examination report noted that the Veteran’s most recent hemoglobin A1c of 6.5 percent in April 2011, and that the Veteran attended diabetic education classes and attempted weight loss. The VA examiner reported that the Veteran was on no medications for his diabetes. In August 2012, VA records note that the Veteran’s diabetes mellitus was reportedly stable. It was noted that the Veteran’s blood sugars were “slowly creeping up” and that he was advised to adhere to diabetic diet recommendations to prevent the need to start diabetes mellitus medications. Subsequent records from that month note that there was no indication to start medication. VA outpatient treatment records dated October 2013 indicated that the Veteran was prescribed low dose sliding scale insulin. On the same of treatment, however, records also note that the Veteran’s diabetes mellitus was diet controlled. Subsequent VA records through August 2015 continued to note that the Veteran’s diabetes mellitus was controlled with diet. In February 2017, the Board notes that VA records indicate that the Veteran was prescribed Metformin and glipizide for diabetes mellitus. Shortly thereafter, in June and July 2017, VA records reflect that the Veteran did not check his blood sugar regularly at home but that his diabetes mellitus was controlled with diet. Subsequent VA records dated November 2017 to September 2020 continued to indicate that the Veteran’s diabetes mellitus was controlled by diet alone. Based on the evidence of record, the Board finds that the disability picture for the Veteran’s type 2 diabetes mellitus more nearly approximates the criteria envisioned for a 10 percent rating. The Board is cognizant of the intermittent references to insulin, Metformin, and glipizide during the period on appeal. However, treatment notes from the same date or those immediately thereafter indicated that the Veteran’s diabetes mellitus was controlled through his diet alone as was generally noted throughout the appellate period. The Board finds that the Veteran’s type 2 diabetes mellitus does not require the use of insulin and a restricted diet, or oral hypoglycemic agent and restricted diet as contemplated by the Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. Use of medications in addition to diet was not used for control the large majority of the period on appeal, nor was such required for such extended periods as to warrant assignment of staged ratings. Therefore, an initial rating in excess of 10 percent for type 2 diabetes mellitus is not warranted. Major Depression with PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran’s major depression with PTSD is rated under Diagnostic Code 9411-9434 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.30. The General Rating Formula for Mental Disorders provides that a 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (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. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 100 percent rating is warranted for 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, 4.30. Ratings are assigned according to the manifestation of particular symptoms. However, the 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition of similar type and degree that affect the level of occupational and social impairment. Id. The Veteran contends that he is entitled to a rating in excess of 50 percent prior to December 4, 2012, and a rating in excess of 70 percent thereafter for his service-connected major depression with PTSD; he is rated as 30 percent disabling, effective May 16, 2007, 50 percent disabling, effective April 15, 2011, and 70 percent disabling, effective December 4, 2012. The Veteran filed an informal claim for a TDIU received on April 15, 2011. The RO characterized the claim as one for increased ratings for his service-connected disabilities, to include major depression. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran’s disability increased in severity, such as to warrant a higher rating, during that one year period. Affording the Veteran the benefit of the doubt in light of the short time period between the July 2011 VA examination and the December 2012 disability benefits questionnaire submitted by a psychologist retained by the Veteran’s representative and based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows that his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for generalized anxiety disorder with depression, which contemplates impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411-9434. From April 15, 2011, the Veteran has exhibited social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. While the severity of the Veteran’s major depression with PTSD rises to the level envisioned by the 70 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating. The July 2011 VA examiner and the retained psychologist did not note that the Veteran’s symptoms cause total occupational and social impairment, and in fact the latter opined that the Veteran had no more than occupational and social impairment with deficiencies in most areas or with reduced reliability. Statements made by the Veteran also collectively did not note gross impairment in thought processes or communication, persistent delusions or hallucinations; grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Therefore, a total occupational and social impairment was not shown, and a rating in excess of 70 percent is not warranted. TDIU/DEA 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As decided herein, the Veteran’s service-connected major depression with PTSD is found to be 70 percent disabling from April 15, 2011. Accordingly, the Veteran meets the schedular criteria for a TDIU for the period from April 15, 2011. As discussed above, an informal claim for TDIU was received on April 15, 2011, and serves as the effective date for the award of the 70 percent rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A subsequent Application for Increased Compensation Based on Unemployability (VA 21-8940) was received by the RO on July 19, 2011. Thus, the appellate period is encompassed by the 70 percent rating. 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected major depression with PTSD, alone. The Veteran indicated that he last held employment from January to June 2008 as a warehouse manager for Absorbent Technologies. He reported that he completed three years of college. The Veteran indicated that has not tried to obtain employment, nor has had any education or training since this date. As referenced in the July 2011 VA examination report and July 2011 Statement in Support of Claim (VA 21-4138), he performed home repair in exchange for rent and food at his cousin’s house. The July 2011 VA examiner opined that the Veteran has an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA examination report indicated that the Veteran endorsed “raging angers,” difficulty in dealing with others, persistent anxiety and depression, some intrusive thoughts, social isolation, some impairment in concentration and focus, social withdrawal, and feelings of hopelessness. The retained psychologist in December 2012 opined that the Veteran has an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. The psychologist further opined that the severity of the Veteran’s psychiatric disorder is such that he will not be able to sustain the demands of the typical work environment. The Board finds that the July 2011 VA examination report and December 2012 report by the private psychologist are indicative of the Veteran’s ability to secure and maintain substantial gainful employment. To the extent the record suggests the Veteran is capable of employment, as noted by the July 2011 VA examiner, resolving all doubt in favor of the Veteran, the Board finds that the severity of his service-connected major depression with PTSD rendered him unlikely to secure and maintain substantial gainful employment from April 15, 2011. The evidence of record shows that due to his major depression with PTSD, the Veteran lacked the ability to translate those skills into effective workplace conduct. He simply cannot co-exist with others, be they supervisors, coworkers, or customers, in a sustained and productive manner that would permit substantially gainful employment. Moreover, the Veteran’s difficulties with “raging angers,” difficulty in dealing with others, and inability to handle normal workplace pressures and constructive criticism would preclude employment on a full time, substantially gainful basis. Moreover, the United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). To the extent that the Veteran meets the 70 percent rating for major depression with PTSD, and that this service-connected disability precludes him from securing or following substantially gainful employment; a TDIU is warranted from April 15, 2011. This decision is based on the Board’s review of the evidence of record for the relevant period on appeal. The evidence supports the assignment of a TDIU, from April 15, 2011, due to the significant occupational impairment that results from the Veteran’s major depression with PTSD alone. The effective date for basic eligibility for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. As such, the Board finds that the award of basic eligibility for DEA benefits is established from April 15, 2011, as that is the date as of which it has been found that the Veteran became permanently and totally disabled due to service-connected major depression with PTSD. REASONS FOR REMAND In the Veteran’s April 2014 Notice of Disagreement, he asserts that he is entitled to an effective date earlier than February 21, 2006, for the award of service connection for multiple myeloma. In support of his contention, the Veteran directed attention to the special rules VA has promulgated to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran’s Affairs. See 38 C.F.R. § 3.816. The Board notes that the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. The Veteran asserts that he is a Nehmer class member who has a covered herbicide disease (multiple myeloma). 38 C.F.R. § 3.816(b)(1)(i). To date, the AOJ has yet to address the Veteran’s Nehmer argument, and a remand is warranted to address the Veteran’s contentions. The Veteran’s request for effective date earlier than May 15, 2013, for the award of SMC under 38 U.S.C. § 1114(s) is premised upon the potential award of an earlier effective date for the grant of service connection for multiple myeloma. Therefore, the Board defers decision on the earlier effective date claim for the award of SMC under 38 U.S.C. § 1114(s) as inextricably intertwined with the Veteran’s claim for an earlier effective date for the award of service connection for multiple myeloma. The matters are REMANDED for the following action: 1. Readjudicate the Veteran’s claim for an effective date earlier than February 21, 2006 for the award of service connection for multiple myeloma. 2. After the above development has been completed, readjudicate the Veteran’s claim for an effective date earlier than May 15, 2013 for the award of SMC under 38 U.S.C. § 1114(s). 3. If the benefits sought remain denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate Counsel 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.