Citation Nr: 21013794
Decision Date: 03/10/21	Archive Date: 03/10/21

DOCKET NO. 12-01 879
DATE: March 10, 2021

ORDER

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity external cutaneous nerve peripheral neuropathy. is denied.

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity external cutaneous nerve peripheral neuropathy is denied.

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity ilio-inguinal nerve peripheral neuropathy. is denied.

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity ilio-inguinal nerve peripheral neuropathy. is denied.

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity obturator nerve peripheral neuropathy. is denied.

Entitlement to an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity obturator nerve peripheral neuropathy. is denied.

Entitlement to an initial rating of 70 percent, but no higher, from October 5, 2006 to June 12, 2014 for posttraumatic stress disorder (PTSD) is granted.

Entitlement to an increased rating in excess of 20 percent for type II diabetes mellitus is denied.

Entitlement to an increased rating of 20 percent, but no higher, for left lower extremity sciatic nerve peripheral neuropathy is granted.

Entitlement to an increased rating of 20 percent, but no higher, for right lower extremity sciatic nerve peripheral neuropathy is granted.

Entitlement to an initial compensable rating for left lower extremity external cutaneous nerve peripheral neuropathy is denied.

Entitlement to an initial compensable rating for right lower extremity external cutaneous nerve peripheral neuropathy is denied.

Entitlement to an initial compensable rating for left lower extremity ilio-inguinal nerve peripheral neuropathy is denied.

Entitlement to an initial compensable rating for right lower extremity ilio-inguinal nerve peripheral neuropathy is denied.

Entitlement to an initial compensable rating for left lower extremity obturator nerve peripheral neuropathy is denied.

Entitlement to an initial compensable rating for right lower extremity obturator nerve peripheral neuropathy is denied.

Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(l) based on the need for the aid and attendance of another is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 25, 2009 is remanded.

FINDINGS OF FACT

1. VA received a formal claim for entitlement to a TDIU on August 17, 2018, which was also treated as a claim for increased ratings for bilateral lower extremity peripheral neuropathy. In an October 2018 rating decision, the RO granted service connection for left and right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal and obturator nerves.

2. Prior to the August 17, 2018 claim, there were no pending requests for service connection for left or right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal or obturator nerves or claims for increase for the already service connected left and right lower extremity peripheral neuropathy.

3. Prior to June 12, 2014, the Veteran’s PTSD was manifested by nightmares, chronic sleep impairment, irritability with outbursts of anger, anxiety, depression, suicidal ideation, and suspiciousness, resulting in social and occupational impairment with deficiencies in most areas.

4. Throughout the period on appeal, the Veteran’s type II diabetes mellitus has been manifested by the use of oral hypoglycemic agents and restricted diet.

5. Throughout the period on appeal, the Veteran’s left lower extremity sciatic nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in moderate incomplete paralysis.

6. Throughout the period on appeal, the Veteran’s right lower extremity sciatic nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in moderate incomplete paralysis.

7. Throughout the period on appeal, the Veteran’s left lower extremity external cutaneous nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

8. Throughout the period on appeal, the Veteran’s right lower extremity external cutaneous nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

9. Throughout the period on appeal, the Veteran’s left lower extremity ilio-inguinal nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

10. Throughout the period on appeal, the Veteran’s right lower extremity ilio-inguinal nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

11. Throughout the period on appeal, the Veteran’s left lower extremity obturator nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

12. Throughout the period on appeal, the Veteran’s right lower extremity obturator nerve peripheral neuropathy has been manifested by tingling, pins and needles sensations, moderate constant pain, moderate paresthesias or dysesthesias and moderate numbness; resulting in mild incomplete paralysis.

13. Throughout the period on appeal, the Veteran’s service-connected disabilities have not resulted in the need for the aid and attendance of another.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity external cutaneous nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

2. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity external cutaneous nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

3. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity ilio-inguinal nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

4. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity ilio-inguinal nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

5. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for left lower extremity obturator nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

6. The criteria for an effective date prior to August 17, 2018 for the grant of service connection for right lower extremity obturator nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

7. The criteria for an initial rating of 70 percent, but no higher, from October 5, 2006 to June 12, 2014 for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411.

8. The criteria for an increased rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913.

9. The criteria for an increased rating of 20 percent, but no higher, for left lower extremity sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

10. The criteria for an increased rating of 20 percent, but no higher, for right lower extremity sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

11. The criteria for an initial compensable rating for left lower extremity external cutaneous nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8529.

12. The criteria for an initial compensable rating for right lower extremity external cutaneous nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8529.

13. The criteria for an initial compensable rating for left lower extremity ilio-inguinal nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8530.

14. The criteria for an initial compensable rating for right lower extremity ilio-inguinal nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8530.

15. The criteria for an initial compensable rating for left lower extremity obturator nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8528.

16. The criteria for an initial compensable rating for right lower extremity obturator nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8528.

17. The criteria for SMC pursuant to 38 U.S.C. § 1114(l) based on the need for the aid and attendance of another have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.151, 3.155, 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1968 to October 1970.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2010 and October 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in August 2010 the RO granted service connection for PTSD, assigning a 50 percent rating effective October 5, 2006. The Veteran perfected an appeal of the rating and effective date assigned to the Board. Following perfection of his appeal, in an October 2016 rating decision the RO granted a 100 percent rating for PTSD effective June 13, 2014. As this constitutes a full grant of the benefits sought from that date forward, the issue of entitlement to an increased rating for PTSD from June 13, 2014 forward is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The issue has been recharacterized to reflect the date of the staged increased rating. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2017 concerning the issue of entitlement to an increased rating for PTSD prior to June 13, 2014 and an earlier effective date for the award of service connection for PTSD. A transcript of the hearing is of record. 

In August 2017, the Board denied entitlement to an increased rating in excess of 50 percent for PTSD and an earlier effective date for the award of service connection. The Board further found that entitlement to a TDIU had been raised by the record as part and parcel of the increased rating claim and remanded the issue for further development. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). A March 2018 Court order implemented a Joint Motion for Partial Remand, vacating and remanding that portion of the Board decision that denied an increased rating for PTSD. The Joint Motion for Partial Remand specifically stated that the Veteran was not contesting the denial of an earlier effective date, and therefore the Board’s denial of that issue is final. 38 C.F.R. § 20.1100.

The increased rating issue was returned to the Board in Mach 2018. In September 2018 the Board again denied entitlement to an increased rating in excess of 50 percent prior to June 13, 2012. The Veteran again appealed to the Court, and an October 2019 Court order implemented a Joint Motion for Remand vacating and remanding the Board’s denial. The issue was returned to the Board in December 2019. While the increased rating issue was awaiting readjudication by the Board, development was completed with respect to the TDIU claim and that issue was recertified to the Board in April 2020.

In May 2020 the Board remanded the issues on appeal for additional development, and the requested medical opinion was obtained in August 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

During the course of the above appeal, in October 2018 the RO granted service connection for left and right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal and obturator nerves, assigning a noncompensable rating for each of the six nerves effective August 17, 2018. The RO also denied entitlement to increased ratings for type II diabetes mellitus and left and right lower extremity peripheral neuropathy of the sciatic nerves and entitlement to SMC pursuant to 38 U.S.C. § 1114(l). The Veteran properly perfected an appeal of the effective dates and ratings assigned for the bilateral cutaneous, ilio-inguinal and obturator nerves, and the denials of increased ratings of diabetes and the left and right lower extremity sciatic nerves and SMC under 38 U.S.C. § 1114(l) to the Board. The two appeals have been combined into a single appeal for the purposes of review by the Board.

The Board notes that in a rating decision issued in April 2020, the RO granted entitlement to a TDIU effective March 25, 2009. As this constitutes a full grant of the benefits sought from that date forward, the issue of entitlement to a TDIU from that date forward is no longer on appeal. Ab, 6 Vet. App. 35. However, the Veteran’s current claim for an increased rating for PTSD dates to October 2006. As TDIU was not granted for the entirety of the appellate period for the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 359–62 (2018). As such, the issue of entitlement to a TDIU prior to March 25, 2009 is still on appeal.

Earlier Effective Dates

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). If a claim for compensation is received within one year after separation from service, the effective date for an award of service connection is the day following separation from active service. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2) (2018).

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. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. 

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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). 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 addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b).

Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. 

Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b) (2017). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id.

1. Entitlement to earlier effective dates for the grants of service connection for bilateral lower extremity peripheral neuropathy of the external cutaneous, ilio-inguinal and obturator nerves.

As the facts and analysis for each of the six effective date claims on appeal are substantially the same, the Board will address all of the claims together for the purposes of brevity.

The Veteran filed a claim for entitlement to a TDIU which was received by VA on August 17, 2018. The TDIU claim was in part predicated upon the Veteran’s service-connected diabetic neuropathy, and as such the RO accepted the TDIU claim as a claim for an increased rating for diabetic peripheral neuropathy as well. In October 2018 the RO then granted service connection for left and right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal and obturator nerves, assigning noncompensable ratings effective August 17, 2018, the date of the formal claim for a TDIU. 

Prior to the August 17, 2018 formal TDIU claim, the Veteran did not file any statements which may be interpreted as expressing an intent to file for service connection for peripheral neuropathy of additional nerves, or any statements that identified, at even a high level of generality, additional nerves affected by the peripheral neuropathy or that identified any treatment records concerning the disability. Sellers v. Wilkie, 965 F.3d 1328, 1337–38 (Fed. Cir. 2020); see also Shea v. Wilkie, 926 F.3d 1362, 1369–70 (Fed. Cir. 2019). No intent to file forms were received by VA within the one year period prior to receipt of the Veteran’s formal claim for a TDIU. 38 C.F.R. § 3.155(b) (2017).

Furthermore, prior to August 17, 2018 there is no evidence of any claims for an increased rating for diabetic peripheral neuropathy generally which may have given rise to claims service connection for separately compensable affected nerves. The Veteran was granted service connection for left and right lower extremity peripheral neuropathy in a December 2009 rating decision, but did not file a notice of disagreement with ratings assigned in that decision nor was evidence associated with the file during the one year period which reflected a worsening of the diabetic neuropathy or the involvement of additional nerves. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020). As such, that rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. Between the December 2009 decision and the August 20187 formal claim for TDIU the Veteran did not file any statements requesting an increased rating for his diabetic neuropathy which may have given rise to additional claims for service connection for other affected nerves. See Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13 (July 27, 2020).

Finally, the Veteran’s claim giving rise to the grants of service connection for the left and right lower extremity cutaneous, ilio-inguinal and obturator nerves was received well after the one-year period following his separation from service, the day following the Veteran’s separation from service cannot be used as an effective date. 38 C.F.R. § 3.400(b)(2). As such, the Board finds that the appropriate date of claim in this case is August 17, 2018, the date on which VA received the Veteran’s formal claim for entitlement to a TDIU and inferred claim for an increased rating for diabetic peripheral neuropathy.

As noted earlier, the effective date for an award of service connection is to be fixed based on the facts found, but cannot be earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). Here, the Veteran’s claim for a TDIU, which was accepted as a claim for an increased rating for diabetic peripheral neuropathy, was received on August 17, 2018. There is no evidence of any claims for service connection for peripheral neuropathy of the left or right cutaneous, ilio-inguinal or obturator nerves or any pending claims for an increased rating for diabetic peripheral neuropathy generally prior to that date. Neither the Veteran nor his representative have presented any argument as to why an earlier date is warranted. As such, the claims for effective dates earlier than August 17, 2018, for the awards of service connection for left and right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal and obturator nerves are denied. 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see 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.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

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; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

1. Entitlement to an increased rating for 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. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 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. Id. 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. Id.

The Veteran’s PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 50 percent rating is assigned 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is assigned 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.

A 100 percent rating is assigned 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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.

The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 224–26 (2018).

During his April 2017 hearing the Veteran testified that his PTSD had caused strained relationships with his spouse and children, and has limited his social relationships outside of his family. The Veteran also testified to irritability with outbursts of anger. During the period at issue the Veteran has otherwise submitted statements reporting depression, social isolation, neglect of personal appearance and hygiene, memory issues, and a history of suicide attempts. The Veteran is competent to report such symptoms and there is no evidence that the statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, they are entitled to probative weight as to the severity of his disability during the period at issue. 

The Veteran was provided with VA psychiatric examinations in July 2009 and May 2011. In July 2009 the Veteran reported irritability with outbursts of anger, an exaggerated startle response and impaired sleep. Socially the Veteran reported that he had a fair relationship with his wife and children, although he further indicated that he had a history of not speaking to one of his children. Outside of his family he reported that he was the president of his home association, but that he was limited in his ability to participate in any activities. He stated that he did not engage in social activities with people outside of his immediate family. Occupationally the examiner noted that there was a severe impact on employment.

On examination the examiner noted depression, depressed mood, anxiety, and sleep impairment. The examiner stated that there was no significant impairment of impulse control or delusions elicited on examination, and further noted that the Veteran had normal thought processes and content, behavior, hygiene, orientation and speech. The examiner noted that the Veteran reported a history of hallucinations but stated that he now has them only occasionally. The Veteran denied homicidal ideation and suicidal ideation, although he reported a history of suicide attempts which resulted in hospitalization. The Veteran’s memory was noted to be fairly good, although the Veteran stated that his memory waxes and wanes. Finally, the examiner stated that there was no evidence of obsessive or ritualistic behaviors.

During the May 2011 examination, the Veteran reported that he experienced irritability with verbal outburst, nightmares, an exaggerated startle response, and sleep impairment. Socially, the Veteran reported getting along well with his wife and improved relationships with his children compared to a few years ago. He reported some interactions with his brother’s family as well, but otherwise denied social interactions. The Veteran stated that he disliked crowds and tried to avoid them, but was also still capable of going to public places for two to three hours. The examiner noted that the Veteran experienced anxiety, nightmares, suspiciousness, and chronic sleep impairment. On examination the Veteran’s affect and behavior were normal and he demonstrated no significant emotional distress. While the examiner also noted that the Veteran had of delusions or hallucinations these were attributable to his diagnosis of schizophrenia. The examiner further noted that the Veteran denied hallucinations at the time and stated that they were not really an issue anymore. Overall, the examiner stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency.

There is no evidence that the above examiners were either not competent or credible. Further, both assessments were based on the Veteran’s own account of his symptoms, a review of the medical evidence, and each examiner’s objective psychiatric examination. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Treatment records during the period at issue reflect on-going treatment for a psychiatric disability. Treatment records generally reflect reports of mood swings, chronic sleep impairment, depression, marital strife, hyperarousal, and irritability. The records also generally reflect that the Veteran has denied suicidal or homicidal ideation during the period at issue, but has endorsed a history of at least two suicide attempts in the 1970s and 1980s. A November 2007 record noted normal appearance, behavior, orientation, speech, affect, thought processes, memory, judgment and insight. Impulse control was noted to be intact at the time. The record further noted the Veteran reported auditory hallucinations telling him to harm himself that he was able to ignore.

An August 2008 treatment record noted reports of depression, sleep impairment, mood swings and irritability, with the Veteran again reporting a past history of suicide attempts and auditory hallucinations. A May 2009 mental health assessment noted reports of sleep impairment, irritability, exaggerated startle response, social isolation and impaired concentration. The Veteran also reported some auditory hallucinations, although the examiner noted that there was no evidence of delusions at the time. An August 2009 record noted that the Veteran had normal appearance, speech, affect, thought content and processes, insight and judgment.

An August 2018 vocational assessment noted that the Veteran reported he had experienced symptoms of irritability with outburst of anger, nightmares and sleep impairment since his separation from service. The assessment further reflects that the Veteran stated that he had a long history of interpersonal conflicts with family, co-workers and supervisors and that he had no friends. 

Based on the foregoing, an increased rating of 70 percent, but no higher, prior to June 12, 2014 is warranted. The evidence shows that throughout the period on appeal the Veteran has displayed unprovoked irritability with outbursts of verbal violence, as well as sporadic instances of suicidal ideation. In addition, the Veteran’s treatment records reflect consistent reports of depression and anxiety, which the Veteran and his spouse have reported interfere with his ability to attend to tasks during the day. Further, the evidence of record during the period at issue reflects that while the Veteran was able to largely maintain relationships with his wife and children, as well as some individuals outside of his immediate family, his PTSD symptoms significantly impaired the quality of those relationships. Based on the above, the Board finds that the Veteran’s overall disability picture during the period from October 2006 to June 2014 more nearly approximated occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130, Diagnostic Code 9411. As such, an increased rating of 70 percent, but no higher, during the period at issue for the Veteran’s PTSD is warranted.

However, an increased rating in excess of the 70 percent rating assigned herein is not warranted. The VA examinations and treatment records associated with the file during the period at issue reflect that the Veteran’s behavior, thought processes, speech, hygiene, appearance, and orientation were routinely noted to be normal. During the period at issue, the Veteran reported having memory difficulties. However, there is no evidence that the Veteran had such memory impairment that he could not remember closely held information, such as his own name. Indeed, the medical evidence reflect that the Veteran was able to talk about both remote and recent events in great detail. None of the medical evidence has indicated that the Veteran has memory impairment so severe that he has difficulty remembering information such as his own name. As such, the preponderance of the evidence is against a finding that the Veteran’s reported memory impairment rises to the level of severity contemplated by a 100 percent rating.

Throughout the period on appeal the Veteran has also stated that he experiences irritability with outbursts of anger. However, during the period at issue the Veteran’s outbursts were generally characterized as verbal, as opposed to involving physical violence. Indeed, the Veteran himself reported during the May 2011 VA examination that his outbursts consistent of verbal anger and not physical violence.  While an August 2018 vocational assessment noted that the Veteran reported occasional physical altercations at work, this was not reported to either the July 2009 or May 2011 examiners, nor are work altercations reported in his treatment records despite the fact that the Veteran frequently stated that he had issues with irritability. An August 2008 treatment record reflects that the Veteran reported a past history of  physical violence during outbursts, but again did not state that it was a current issue. Further, treatment records show that the Veteran has consistently denied experiencing any homicidal ideation of any kind, and an October 2007 treatment record noted that the Veteran did not pose a threat to himself or others.

As noted at the outset of the decision, a 100 percent rating contemplates individuals who post a persistent threat to others. Persistent is defined, in pertinent part, as “existing for a long or longer than usual time or continuously. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 924 (11 ed. 2003). While the evidence of record indicates that the Veteran may have a history of physically violent outbursts, the evidence during the period at issue does not reflect that the Veteran was engaged in violent behavior that was directed toward others on a frequent enough basis to be considered a continuous threat to others. Id. Indeed, there is no evidence from the period specifically at issue indicating that the Veteran’s disability manifested in physical violence toward anyone, with the Veteran reporting only verbal outbursts as noted above. As such, the Board finds that the Veteran did not pose a persistent threat to others during the period prior to June 13, 2014. Id. Instead, his disability picture is more nearly approximated by the assigned 70 percent rating, which contemplates impaired impulse control manifested by unprovoked irritability with periods of violence.

A 100 percent rating also contemplates individuals who are a persistent threat to themselves. To this end, the Board notes that the Veteran has a history of at least two suicide attempts, one in the 1970s and one in the 1980s. Further, a May 2008 VA treatment record noted that the Veteran was a high suicide risk and the Veteran endorsed suicidal ideation on at least one other occasion. As discussed above, persistent is defined as “existing for a long or longer than usual time or continuously.” Id. While the evidence shows a history of two attempts decades earlier and some ideation during the period at issue, the evidence also reflects that the Veteran generally denied experiencing any current ideation during the period on appeal and that in October 2007 the Veteran was determined to not pose a threat to himself. The Veteran also denied current suicidal ideation at both VA examinations. 

Further, there was no evidence of additional attempts during the period at issue or that the Veteran actively engaged in any planning. Indeed, the May 2008 VA treatment record specifically noted that the Veteran denied any plan at that point despite assessing him as a suicide risk. Finally, while the Veteran has a history of at least two attempts, these attempts were in the 1970s and 1980s, and thus do not establish that the Veteran posed a persistent threat to himself during the period from 2006 to 2014 that is the subject of the current appeal. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that during the period at issue the Veteran posed a persistent threat to himself. Instead, the Veteran’s disability picture is more nearly approximated by the assigned 70 percent rating, which contemplates suicidal ideation.

With respect to thought content, the Board notes that the Veteran reported either a history of auditory hallucinations or recently experiencing hallucinations during the period on appeal, including in November 2007 and August 2008 VA treatment records. The Veteran also reported such hallucinations during the July 2009 VA examination, at which point he stated that they only occurred occasionally, and during the May 2011 examination, with the examiner further noting the Veteran reported the hallucinations had not been a significant problem in recent years. 

The 100 percent rating under the General Formula contemplates persistent delusions of hallucinations. However, symptoms which are attributed to a non-service connected disability cannot be considered when rating a service-connected disability. 38 C.F.R. § 4.14. If the two disabilities, and the symptoms associated therewith, cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998).

The May 2011 VA examiner noted the Veteran reported hallucinations or delusions, but stated that these symptoms were associated with his separately diagnosed schizophrenia, which the examiner had diagnosed alongside PTSD at the time of the examination. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Treatment records prior to the May 2011 VA examination also reflect sporadic diagnoses of schizophrenia, paranoid schizophrenia or general psychosis in addition to PTSD. Id. Additional VA psychiatric examinations conducted in June 2014, June 2016, September 2018 and March 2019 all noted that the Veteran’s PTSD was not manifested by persistent delusions or hallucinations. 

In August 2020 VA obtained an opinion concerning the prior diagnosis of schizophrenia and the etiology of the Veteran’s hallucinations. The examiner first stated that based on a review of the records from October 2006 to June 2014, the Veteran was diagnosed with paranoid schizophrenia on several occasions, and received on-going treatment for such during that period. The examiner stated that in his opinion the Veteran had a valid diagnosis of paranoid schizophrenia based on the applicable diagnostic criteria during the period between October 2006 and June 2014. The examiner noted that the Veteran was also diagnosed with PTSD and depression during this period, but that these were made concurrent with the schizophrenia diagnosis. 

As to the differentiation of the Veteran’s symptomatology, the examiner noted that it was difficult to determine the symptoms associated with the schizophrenia based on the record. However, the examiner noted that May 2008 and April 2009 treatment records noted that the Veteran’s hallucinations were symptoms of his schizophrenia. He further noted that a later June 2014 VA examination did not indicate that the Veteran had hallucinations associated with his PTSD, instead stating only that the Veteran’s PTSD was manifested by intruding recollections, sleep disturbance, nightmares, psychological distress, physiological distress, avoidance, hypervigilance, startle response and flashbacks. As such, based on a review of the evidence of record the examiner attributed the hallucinations to the Veteran’s schizophrenia, not the PTSD. 

There is no evidence that the above examiner was either not competent or credible. Further the examiner based on his opinion on a review of the medical evidence of record, and supported the opinion with direct citations to the evidence. As such, the Board finds that the opinion is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. 

Further, as noted subsequent VA examinations in June 2014, June 2016, September 2018 and March 2019 all indicated that the Veteran’s PTSD was not manifested by hallucinations. Thus, none of the VA examiners to date have stated that the Veteran’s hallucinations are attributable to his PTSD. Based on the foregoing, the Board finds that the evidence establishes that the Veteran’s reported hallucinations during this period were due to his validly diagnosed and nonservice-connected schizophrenia. As the hallucinations have been attributed to a separately diagnosed but not service-connected disability, they cannot be considered when rating the Veteran’s PTSD. 38 C.F.R. § 4.14; see Mittleider, 11 Vet. App. 181.

However, even if the Veteran’s hallucinations were attributable to his PTSD, the evidence does not show that the hallucinations were persistent during the period at issue. Again, persistent is defined as “existing for a long or longer than usual time or continuously.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 924 (11 ed. 2003). In this case, during the period at issue the Veteran reported auditory hallucinations in November 2007, August 2008, and April 2009. In May 2008 the Veteran denied consistent auditory hallucinations, instead reporting that he hears what he believed to be voices only occasionally. A May 2009 treatment record noted that the Veteran denied hallucinations at that time. He further reported them during the July 2009 VA examination, but stated they occurred only occasionally, and during the May 2011 examination in which the examiner noted that they had not been an issue in recent years. Following 2009, treatment records are silent for any complaints of hallucinations, with the Veteran routinely denying any issues with hallucinations in treatment records from 2016 forward. As such, the evidence reflects that the auditory hallucinations occurred only occasionally by the time of the May 2011 VA examination, and seemingly halted entirely thereafter. Thus, the hallucinations were not persistent during the period at issue, and therefore do not more nearly approximate the level of severity contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411.

Finally, the preponderance of the evidence is against a finding that the Veteran’s PTSD symptoms, even if the documented hallucinations are included, result in total social and occupational impairment. First, the evidence of record clearly shows that the Veteran was employed at the National Park Service from 2006 until some point in 2008, and thus during that period of time the Veteran did not have a total occupational impairment. Further, during the entire period at issue the Veteran was able to maintain relationships with his children and spouse. While the record clearly reflects that the quality of these relationships varied during the period at issue due to his symptoms, the Veteran was ultimately able to maintain these relationships during the period prior to June 13, 2014, and indeed reported to the May 2011 examiner that his relationships with his family had improved.

The evidence of record also indicates that the Veteran was able to maintain some relationships outside of his immediate family. During the July 2009 examination the examiner noted that the Veteran had few friends, which indicates that the Veteran had other individuals with whom he socialized outside of his family. Further, he reported being the president of the homeowner’s association in May 2011 and participating, albeit on a limited basis, in activities in conjunction with that role. It is uncontroverted that the Veteran’s PTSD and its associated symptoms have impaired his relationships with his family and those outside of it. However, the evidence does not support a finding that the Veteran’s PTSD resulted in a total social impairment during the period on appeal. Instead, the Veteran’s level of social impairment is more accurately encompassed by the currently assigned 70 percent rating, which contemplates deficiencies in family, work and social relationships and the inability to establish and maintain effective relationships. As such, an increased rating of 100 percent is not warranted during the period at issue. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.

All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that an initial rating of 70 percent, but no higher, prior to June 13, 2014 is warranted. See Hart, 21 Vet. App. 505. However, the preponderance of the evidence is against a finding that a rating in excess of 70 percent prior to June 13, 2014 is warranted in this case. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

2. Entitlement to an increased rating for type II diabetes mellitus.

The Veteran’s diabetes mellitus type II is rated under Diagnostic Code 7913. Under Diagnostic Code 7913, diabetes requiring one or more daily injections of insulin and restricted diet, or requiring oral hypoglycemic agents and restricted diet warrants a 20 percent rating. Id. Diabetes requiring one or more daily injections of insulin, restricted diet and regulation of activities warrants a 40 percent rating. Id. 

Diabetes requiring one or more daily injections of 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, warrants a 60 percent rating. Id. Finally, diabetes requiring more than one daily injection of insulin, restricted diet, and regulations 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. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). “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. Id.

During the period on appeal, while the Veteran and his wife have submitted lay statements none of the statements discuss the symptoms associated with his type II diabetes mellitus. As such, these statements are of limited probative value, and the issue must be decided based on the medical evidence of record.

The Veteran was provided with a VA examination in March 2019. The examiner stated that the Veteran had a diagnosis of type II diabetes mellitus which was treated by oral hypoglycemic agents and managed by a restricted diet. The examiner stated that the Veteran was not required to regulate his activities. The examiner stated that the Veteran visits his care providers for episodes of ketoacidosis or hypoglycemia less than twice per month and had not been hospitalized to ketoacidosis or hypoglycemia in the past twelve months. There was no evidence of loss of strength or weight. There is no evidence that the above examiner was either not competent or credible. Further, the examiner’s assessment of the disability was based on a review of the medical evidence, the Veteran’s own account of the disability and how it is treated, and an objective examination. As such, the Board finds that the examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

Treatment records reflect on-going treatment for type II diabetes mellitus, but do not indicate that the Veteran is required to regulate his activities. Further, there is no evidence of treatment or hospitalizations for episodes of ketoacidosis or hypoglycemia. 

Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 20 percent for diabetes mellitus is warranted. As noted above, the rating criteria for diabetes mellitus are successive, meaning that when one requirement is not met at any one level the Veteran can only be rated at the level that does not require the missing component. Id. Here, there is no evidence that the Veteran’s diabetes mellitus requires regulation of activities. As such, an increased rating for the Veteran’s type II diabetes mellitus is not warranted in this case. 38 C.F.R. § 4.3, 4.7, 4.119, Diagnostic Code 7913.

The Veteran has only been diagnosed with type II diabetes mellitus which is specifically covered by Diagnostic Code 7913. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015) (“the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy”). Thus, consideration of any alternative Diagnostic Codes is not warranted. Further, separate compensable ratings are not warranted in this case. See Bailey, 2021 U.S. App. Vet. Claims LEXIS 13. The Veteran is already service connected for both erectile dysfunction and peripheral neuropathy as complications of his diabetes and in receipt of SMC pursuant to 38 U.S.C. § 1114(k) for the erectile dysfunction. No other complications of diabetes have been noted in the treatment records or in the examination reports. As such, additional separate ratings for complications of type II diabetes mellitus are not warranted in this case.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran his representative, nor the record have raised any other issues. Doucette, 28 Vet. App. at 369–70. The preponderance of the evidence is against increased rating for the Veteran’s diabetes mellitus. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

4. Entitlement to an increased rating for bilateral lower extremity sciatic nerve peripheral neuropathy.

As the facts and analysis for both the left and right sciatic nerve peripheral neuropathy are substantially the same, the Board will address both issues at the same time for the purposes of brevity.

The Veteran’s bilateral sciatic nerve peripheral neuropathy is currently rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. Id.

During the period on appeal, the Veteran and his spouse have reported that he experiences pain in conjunction with his peripheral neuropathy. Both are competent to report such symptoms, and there is no evidence these statements are not credible. Jandreau, 492 F.3d 1372. As such they are entitled to probative weight as to the severity of the disability during the period on appeal.

The Veteran was provided with a VA examination in March 2019. At that time the Veteran reported experiencing numbness, sharp shooting pain, tingling and pins and needles sensations in his bilateral lower extremities. The examiner stated the Veteran had moderate constant pain, paresthesias or dysesthesias, and numbness bilaterally. The examiner stated that muscle strength was normal bilaterally with no evidence of atrophy. Reflexes, sensation to light touch and sensation to vibration were all normal. No trophic changes were present. Overall, the examiner stated that the Veteran had moderate incomplete paralysis of the sciatic nerve bilaterally.

There is no evidence that the above examiner was either not competent or credible. In addition, the examiner’s assessment of the sciatic nerve peripheral neuropathy was based on a review of the medical evidence, the Veteran’s statements concerning his symptoms, and an objective examination of the lower extremities. As such, the Board finds that the examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

Treatment record generally show that the Veteran has received on-going treatment for bilateral diabetic peripheral neuropathy, with reports of pain in the lower extremities. However, there is no evidence of decreased or absent reflexes, decreased muscle strength, atrophy or decreases sensation to touch. A private vocational assessment submitted in August 2018 also noted that the Veteran reported weakness and a burning sensation in his legs, and that he experienced frequent pain.

Based on the foregoing, an increased rating of 20 percent, but no higher, for the left and right lower extremity sciatic nerve peripheral neuropathy is warranted. As discussed above, the examiner noted that the Veteran experienced moderate constant pain, numbness, and paresthesias or dysesthesias in both lower extremities. He then opined that these symptoms resulted in moderate incomplete paralysis of the sciatic nerve in both lower extremities. As such, the evidence shows that an increased rating of 20 percent for the left and right lower extremity sciatic nerve peripheral neuropathy is warranted. 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520.

However, the preponderance of the evidence is against a finding that an increased rating of 20 percent for either the left or right lower extremity sciatic nerve peripheral neuropathy. As discussed at the outset, impairment that is wholly sensory in nature is to be assigned a rating commensurate with mild, or at most moderate, incomplete paralysis. Here, the Veteran’s manifestations in both extremities are entirely sensory, as they are comprised only of pain, tingling, burning sensations, numbness and paresthesias or dysesthesias. 

There is no evidence of any physical manifestations in either lower extremity, with the examination report specifically noting that muscle strength, reflexes, sensation to light touch and sensation to vibration were all normal, and that there was no evidence of muscle atrophy or trophic changes. While the August 2018 vocational assessment noted that the Veteran reported feelings of weakness in his legs, this statement is outweighed by the medical evidence of record, in particular the March 2019 VA examination report which found that after objective testing the Veteran had full strength in all muscles in both lower extremities. Finally, there is no evidence of any of the symptoms associated with complete paralysis of the sciatic nerve in either lower extremity. As such, the preponderance of the evidence is against a rating in excess of 20 percent for the left or right lower extremity sciatic nerve peripheral neuropathy. 38 C.F.R. § 4.3, 4.7, 4.124a, Diagnostic Code 8520.

Higher or additional rating under other Diagnostic Codes are not warranted in this case. While the March 2019 examiner noted involvement of the femoral nerve in both of the lower extremities, the examiner also stated that the nerve was normal. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Further, the Veteran is also already service connected for impairment of the bilateral cutaneous, ilio-inguinal and obturator nerves bilaterally. No other nerves have been identified as being affected by the Veteran’s peripheral neuropathy. 38 C.F.R. § 4.124a, Diagnostic Codes 8521 to 8525, 8527.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 369–70. The preponderance of the evidence is against an increased rating for the Veteran’s left and right lower extremity sciatic nerve peripheral neuropathy. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

5. Entitlement to increased ratings for left and right lower extremity external cutaneous, ilio-inguinal, and obturator nerve peripheral neuropathy.

While each of the three nerves addressed herein are rated under different Diagnostic Codes, the rating criteria for each of the different nerves and the applicable facts are essentially identical. As such, in the interest of brevity the Board will address all six increased rating claims together.

The Veteran’s left and right lower extremity cutaneous nerve peripheral neuropathy are rated under Diagnostic Code 8529, the left and right lower extremity ilio-inguinal nerve peripheral neuropathy are rated under Diagnostic Code 8530, and the left and right lower extremity obturator nerve peripheral neuropathy is rated under Diagnostic Code 8528. While applicable to different nerves, Diagnostic Codes 8528, 8529, and 8530 all utilize the same rating criteria. 

Under each of the three Diagnostic Codes, mild or moderate paralysis of the nerve warrants a noncompensable rating. 38 C.F.R. § 4.124a, Diagnostic Codes 8528 to 8530. Severe to complete paralysis of the affected nerve warrants a 10 percent rating. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note.

The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

During the period on appeal, both the Veteran and his spouse reported in January 2021 statements that the Veteran experiences pain associated with his peripheral neuropathy. Both individuals are competent to report such symptoms, and there is no evidence these statements are not credible. Jandreau, 492 F.3d 1372. As such they are entitled to probative weight as to the severity of the Veteran’s nerve disabilities during the period on appeal.

The Veteran was provided with a VA examination in March 2019. During the examination the Veteran reported numbness, sharp shooting pain, tingling, and pins and needles sensations in both lower extremities. The examiner noted that the Veteran experienced moderate constant pain, paresthesias or dysesthesias, and numbness bilaterally. On examination, the examiner stated that muscle strength was normal bilaterally with no evidence of atrophy. Reflexes, sensation to light touch and sensation to vibration were also all normal following objective testing. No trophic changes were present. There is no evidence that the above examiner was either not competent or credible. In addition, the examiner’s assessment of the Veteran’s peripheral neuropathy was based on a review of the medical evidence, the Veteran’s own account of his symptoms, and an objective examination. As such, the Board finds that the examination report is entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295.

Treatment record generally show that the Veteran has received on-going treatment for bilateral lower extremity diabetic peripheral neuropathy and reports of pain in the lower extremities. However, there is no evidence of decreased or absent reflexes, decreased muscle strength, muscle atrophy or decreases sensation to touch. A private vocational assessment submitted in August 2018 noted that the Veteran reported weakness and a burning sensation in his legs, and that he experienced frequent pain, but included no other findings.

Based on the foregoing, the preponderance of the evidence is against a finding that compensable ratings are warranted for the Veteran’s left or right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal or obturator nerves. Impairment that is wholly sensory in nature is to be assigned a rating commensurate with mild, or at most moderate, incomplete paralysis. Here, the Veteran’s manifestations in both extremities are entitled sensory, as they are comprised only of pain, tingling, burning sensations, numbness and paresthesias or dysesthesias. There is no evidence of any physical manifestations such as loss of muscle strength, decreased reflexes, muscle atrophy or trophic changes. While the Board acknowledges that the March 2019 examiner stated that the Veteran’s pain, paresthesias or dysesthesias and numbness were moderate in severity, a rating of moderate incomplete paralysis based on wholly sensory impairment is the maximum allowable rating, and thus is warranted only for severe sensory impairment. 

Further, even if the Board were to find based on the presence of moderate sensory symptoms that the Veteran’s impairment more nearly approximated moderate paralysis of the cutaneous, ilio-inguinal or obturator nerves, mild or moderate paralysis still warrants a noncompensable rating under each of the applicable Diagnostic Codes. 38 C.F.R. § 4.124a, Diagnostic Codes 8528, 8529, 8530. As such, the preponderance of the evidence is against a finding that an initial compensable rating for the Veteran’s left or right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal or obturator nerve is warranted. 38 C.F.R. § 4.3, 4.7, 4.124a, Diagnostic Codes 8528, 8529, 8530.

Higher or additional rating under other Diagnostic Codes are not warranted in this case. While the March 2019 examiner noted involvement of the femoral nerve in both of the lower extremities, the examiner stated that the nerve was normal. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Further, the Veteran is already service connection for his left and right peripheral neuropathy of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. No other nerves have been identified as being affected by the Veteran’s peripheral neuropathy. 38 C.F.R. § 4.124a, Diagnostic Codes 8521 to 8525, 8527.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 369–70. The preponderance of the evidence is against initial compensable ratings for the Veteran’s left and right lower extremity peripheral neuropathy of the cutaneous, ilio-inguinal, and obturator nerves. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claims are denied.

Special Monthly Compensation

SMC is an additional level of compensation paid to veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a veteran beyond the impairment of earning capacity, which is central to the Rating Schedule. 38 C.F.R. § 4.1. As it considers the interactive effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. Basic levels of SMC are listed at 38 U.S.C. § 1114(k), with additional levels of SMC provided in 38 U.S.C. § 1114(l) through (t). Only the additional levels pertinent to the Veteran’s claim are discussed herein.

The SMC rate payable under 38 U.S.C. § 1114(l) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b)(1)–(4). An individual is considered to be bedridden when the Veteran’s condition requires that he or she remain in bed. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day will not suffice to establish bedridden status. 38 C.F.R. § 3.352(a).

When determining whether a Veteran requires aid and attendance, and therefore qualifies for the rate provided under 38 U.S.C. § 1114(l), the following factors must be considered: (1) inability to dress or undress, or to keep ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of to feed himself or herself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or, (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. §§ 3.350(b)(3), 3.352(a). All of the above criteria need not be met in order for it to be determined that a Veteran requires aid and attendance. Id. Instead the functions which the Veteran is unable to perform should be considered in connection with the Veteran’s condition as a whole. Id. 

6. Entitlement to SMC pursuant to 38 U.S.C. § 1114(l).

The Veteran asserts that he is entitlement to SMC pursuant to 38 U.S.C. § 1114(l) based on his need for the aid and attendance of another. In a January 2021 statement, the Veteran asserted that his wife serves as a constant caregiver for him. In his statement he reported that while he is able to get to the bathroom at night, he sometimes needs to call for his wife’s assistance once he is there. He stated that he cannot be left alone in the house overnight as he may fall and injure himself. He further stated that he is unable to cook his own meals, and relies on his wife to cook for him and remind him to eat. He stated that he cannot do yard work, chores, or go places for long periods due to his pain and PTSD. He indicated that while he goes to the grocery store his wife accompanies him and he uses assistive devices. Finally, the Veteran stated that due to his memory loss from his PTSD he forgets to tend to his personal hygiene, and has to be reminded to bathe, eat and change his clothes.

The Veteran’s wife also submitted a statement in January 2021. She stated that she has to care full time for the Veteran, as he cannot cook, clean or keep up with his hygiene. She stated that she has to do all of the cooking and has to remind him to eat or he will forget. She further stated that due to his memory problems he will forget to take his medicine, shower, change his clothes and otherwise tend to his personal hygiene, and so she has to constantly remind him to take care of those aspects of his life. Finally, the Veteran’s wife further stated that she cannot leave him alone out of concern that he might fall or harm himself.

In support of the claim for SMC, the Veteran submitted an aid and attendance examination in July 2017. The examiner provided a diagnosis of lumbar spine stenosis as the disability underlying the need for assistance. The examiner then stated that the Veteran was able to feed himself but was unable to prepare his own meals due to limitations on standing, and that the Veteran required assistance with bathing due to the inability to stand long enough to complete a shower. The examiner stated that the Veteran was not blind and did not require medication management, and further that the Veteran had the ability to manage his own financial affairs. 

With respect to posture, the examiner stated that the Veteran was ambulatory with a walker and grimaced when standing from a seated position. No limitations of the upper extremities were present, but the examiner noted that pain limited the use of the lower extremities. The Veteran’s spine, trunk and neck was found to be limited by muscle spasms and limitation of motion of the spine. Finally, the examiner stated that the Veteran did not have any other pathology, including memory loss, that affected his ability for perform self-care or travel outside of the home. There is no evidence the opining physician was not competent or credible, and therefore the Board finds that the examination report is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295.

VA treatment records throughout the period on appeal are silent for any notations that the Veteran was incapable of feeding himself, with his muscle strength generally noted to be normal or full. Further, treatment records generally reflect that the Veteran presented to appointments with normal hygiene and well dressed, and noted that the Veteran was not a fall risk, with the exception of a short period following a November 2013 surgery. The records also reflect consistent treatment for a low back disability, with the Veteran reporting significant limitations with respect to walking, standing and interference with activities of daily living due to the low back disability.

Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities result in the need for the aid and attendance of another. As an initial matter, the only opinion concerning the need for aid and attendance, the July 2017 opinion, attributed all of the Veteran’s limitations to his nonservice-connected low back disability. While the examiner noted that the pain in the Veteran’s lower extremities restricted their use, the examiner overall provided only a diagnosis of lumbar spine stenosis as the reason for the Veteran’s noted limitations with respect to meal preparation, toileting, and mobility. Thus, the only medical opinion of record attributes the Veteran’s need for aid and attendance to a nonservice-connected disability.

With respect to the factors contained in 38 C.F.R. § 3.352, none of the Veteran’s service connected disabilities require the use of any prosthetics or appliances, and thus the aid and attendance of another is not required to assist with their adjustment. 38 C.F.R. § 3.352(a). Concerning the inability to feed oneself, the regulation states that such inability must be due to the loss of coordination or upper extremities or extreme weakness. 38 C.F.R. § 3.352(a). 

While the Veteran is service connected for upper extremity peripheral neuropathy, the most recent March 2019 VA examination noted that the Veteran had no muscle weakness or atrophy in the upper extremities, and that there was no decreased sensation to light touch. A March 2018 VA treatment record also noted full muscle strength in the upper extremities. While the Veteran and his spouse have asserted that he has to be reminded to eat food, this does not equate with the degree of impairment contemplated by an award of SMC under 38 U.S.C. § 1114(l). Although the Veteran may need to be reminded to eat, the Veteran is ultimately still capable of performing the physical act of feeding himself food on his own without assistance. Indeed, the July 2017 private examiner specifically stated that the Veteran was capable of feeding himself. As such, the preponderance of the evidence is against a finding that the Veteran is unable to feed himself due to loss of coordination or extreme weakness. Id.

Concerning the inability to dress or undress, or keep ordinarily clean and presentable, the Veteran and his spouse have both stated that the Veteran forgets to change his clothes, bathe or otherwise tend to his hygiene, and has to be reminded to do so. However, as discussed above forgetting to tend to a task is not the equivalent of the inability to do a task. Nothing in the lay or medical evidence indicates that they Veteran is physically incapable of dressing, bathing or otherwise tending to his hygiene as a result of his service-connected disabilities. While the July 2017 opinion stated that the Veteran required assistance with bathing due to limitations on standing, the examiner stated that this was due to a nonservice-connected back disability. Therefore, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities result in an inability to dress, undress or otherwise attend to hygiene. 

As to the inability to attend to the wants of nature, the Veteran reported in his statement that he occasionally needs assistance from his wife once he gets to the bathroom. However, it is unclear from the Veteran’s statement why this is the case. The July 2017 opinion noted that the Veteran experienced some pain when attempting to stand from a seated position, but this was attributed to the nonservice-connected low back disability. While March 2019 diabetic neuropathy examination noted that the Veteran’s peripheral neuropathy of the lower extremities results in some pain and numbness, there was no reduction in muscle strength or atrophy which would interfere with the acts of standing or sitting and the examiner noted no other functional impact of the disabilities. As such, there is no evidence that the Veteran’s service-connected disabilities interfere with his ability to tend to the wants of nature. Id.

Finally, the preponderance of the evidence is against a finding that the Veteran has physical or mental incapacity which requires care to protect the claimant from hazards or dangers incident in his daily environment. While in their January 2021 statements the Veteran and his spouse have stated that the Veteran is a fall risk, VA treatment records consistently note that the Veteran was not a fall risk, with the exception of November 2013 records following a surgical procedure. Further, the March 2019 peripheral nerves examiner did not note that the Veteran’s diabetic neuropathy rendered him a fall risk or that the Veteran had a history of falls because of his neuropathy. As noted previously while the Veteran has limitation of motion of the low back, as well as limitations on walking and standing, these factors were attributed to a nonservice-connected low back disability by the July 2017 aid and attendance examiner.

In support of the current appeal, the Veteran’s attorney submitted an appellate brief arguing that the Veteran was entitled to SMC pursuant to 38 U.S.C. § 1114(l) based on the need for aid and attendance. However, the brief makes no legal arguments as to why this is the case, and instead simply reiterates the January 2021 statements from the Veteran and his spouse and then concludes by saying that SMC pursuant to 38 U.S.C. § 1114(l) should be granted. As the brief presents no real argument as to why this should be the case, or indeed applies the applicable law to the facts of the case in any way, the Board finds that the brief unpersuasive.

In sum, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities result in the need for aid and attendance of another. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). The evidence does not reflect that the Veteran’s service-connected disabilities result in the inability to dress or undress, feed himself, attend to the wants of nature or protect himself from hazards or dangers incident to his or her daily environment, with the evidence instead showing that the Veteran’s limitations with respect to these tasks stem from his nonservice-connected back disability. 38 C.F.R. § 3.352(a). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 3.102. For these reasons, the claim is denied.

REASONS FOR REMAND

1. Entitlement to a TDIU prior to May 5, 2009.

In reviewing the evidence of record, the RO contacted the Veteran’s former employer, the National Park Service, in March 2019 in order to obtain information concerning his prior employment. In October 2019, the RO received a response from Rock Creek Park, the recipient of the prior letters, stating that the Veteran had worked for the National Mall and Memorial Park. The response further stated that human resources records showed that the Veteran had worked there from 1998 to 2008, when he retired. However, the letter did not provide a date or even month of retirement. The letter concluded by stating that the Veteran had never worked at Rock Creek Park specifically, and that for further information VA should contact the National Mall and Memorial Park. There is no evidence that this park was contacted for further information.

In reviewing the record, the evidence appears to be in conflict as to exactly when in 2008 the Veteran ceased working. The Veteran stated on his formal claim for TDIU that he ceased working at the National Parks Service in June 2008. However, an August 2010 favorable Social Security Administration disability decision states that the Veteran’s period of disability began in April 2008. Further, an SSA work history form completed by the Veteran in July 2008 reflects that the Veteran reported being employed at the National Park Service through the date on the form. Thus, the evidence generally reflects that the Veteran was employed until some point in 2008, but it is unclear exactly when in 2008 the employment ceased. This is of particular import as the period at issue dates back to October 2006, and thus it must be determined with specificity when the Veteran ceased working. As the evidence indicates that more specific information concerning the Veteran’s employment may be obtained from the National Mall and Memorial Park, a remand is warranted so that the RO can make appropriate efforts to obtain the Veteran’s employment information from that source.

The matters are REMANDED for the following action:

1. Make all necessary attempts to obtain the Veteran’s employment information regarding his period of employment with the National Park Service, to include contacting the National Mall and Memorial Park.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Wendell, 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.