Citation Nr: 21023792
Decision Date: 04/21/21	Archive Date: 04/21/21

DOCKET NO. 16-02 256
 DATE: April 21, 2021

ORDER

Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to coronary artery disease, status post coronary bypass graft, is denied.

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type 2 (DM2) is ¬¬¬¬denied.

Prior to February 21, 2020, a disability rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy is denied.

Prior to February 21, 2020, a disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy is denied.

From February 21, 2020, a disability ratings of 10 percent each for involvement of both the sciatic and external popliteal nerves, but no higher, for right lower extremity diabetic peripheral neuropathy is granted.

From February 21, 2020, a disability ratings of 10 percent each for involvement of both the sciatic and external popliteal nerves, but no higher, for left lower extremity diabetic peripheral neuropathy is granted.

Entitlement to an initial disability rating in excess of 10 percent for coronary artery disease, status post coronary bypass graft (hereinafter “CAD”) is denied.

Entitlement to an initial disability rating in excess of 10 percent for residual scar related to the removal of chest sternum bone (hereinafter “chest scar (scars)”) is denied.

Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to February 27, 2020 is denied.

Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disorder from February 27, 2020 is denied.

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 14, 2012 is denied.

Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is denied.

Entitlement to SMC at the housebound rate is denied.

FINDINGS OF FACT

1. The Veteran does not have PTSD.

2. At worst, DM2 does not require insulin, restricted diet, and regulation of activities.

3. Prior to February 21, 2020, right lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve.

4. Prior to February 21, 2020, left lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve.

5. From February 21, 2020, right lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the external popliteal nerve.

6. From February 21, 2020, left lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the external popliteal nerve.

7. At worst, CAD is best evaluated by left ventricular ejection fraction of 55-65 percent which results in fatigue but not angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  

8. At worst, the Veteran’s chest scar (scars) does not manifest as three or four scars that are unstable or painful.

9. Prior to February 27, 2020, acquired psychiatric disorder did not manifest in in 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, speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; and neglect of personal appearance and hygiene.

10. From February 27, 2020, acquired psychiatric disorder did not manifest as 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; and memory loss for names of close relatives, for the veteran’s own occupation, or own name. 

11. Prior to March 14, 2012, the evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of service-connected disabilities.

12. The Veteran is not so helpless as to be in need of regular aid and attendance of another person as a result of his service-connected disabilities.

13. The Veteran does not have a 100 percent disability rating for a single service-connected disability and the basis of the grant of a TDIU effective from March 14, 2012 is not from a single disability.  

CONCLUSIONS OF LAW

1.  The criteria for entitlement to service for PTSD have ¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬not been met.  38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.304, 3.310 (2020).

2. The criteria for a disability rating in excess of 20 percent for DM2 have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2020).

3. Prior to February 21, 2020, the criteria for a disability rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy have ¬¬¬not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.120, 4.123, 4.124a, Diagnostic Code 7913-8721 (2020).

4. Prior to February 21, 2020, the criteria for a disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy have ¬¬¬not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.120, 4.123, 4.124a, Diagnostic Code 7913-8721 (2020).

5. From February 21, 2020, the criteria for a disability ratings of 10 percent each for involvement of both the sciatic and external popliteal nerves for right lower extremity diabetic peripheral neuropathy have¬ been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.120, 4.123, 4.124a, Diagnostic Code 7913-8720-21 (2020).

6. From February 21, 2020, the criteria for a disability ratings of 10 percent each for involvement of both the sciatic and external popliteal nerves for left lower extremity diabetic peripheral neuropathy have ¬ been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.120, 4.123, 4.124a, Diagnostic Code 7913-8720-21 (2020).

7. The criteria for a disability rating in excess of 10 percent for CAD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7017 (2020).

8. The criteria for a disability rating in excess of 10 percent for chest scar (scars) have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Code 7804 (2020).

9. Prior to February 27, 2020, the criteria for a disability rating in excess of 30 percent for acquired psychiatric disorder have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9435 (2020).

10. From February 27, 2020, the criteria for a disability rating in excess of 70 percent for acquired psychiatric disorder have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020)

11. Prior to March 14, 2012, the criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020).  

12. The criteria for SMC based upon the need for regular aid and attendance of another person have not been met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.350, 3.52 (2019).

13. The criteria for SMC at the (s) rate have not been met.  8 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from October 1964 to October 1968 including service in the Republic of Vietnam.  

These matters come before the Board of Veterans’ Appeals (Board) from March 2013, March 2017, and June 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

In a September 2018 letter, the Veteran was informed that he had been scheduled for an October 2018 Board hearing.  The Veteran failed to appear for his October 2018 hearing.  His hearing request is deemed withdrawn.

The Board remanded the appeal in July 2019 for further development of the evidence. 

In an October 2020 rating decision, the RO increased the Veteran’s disability rating for acquired psychiatric disorder to 70 percent effective from February 27, 2020.  As the increased benefit does not constitute a full grant of the benefits sought, the issue remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

The Board finds that there has been substantial compliance with its July 2019 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection

The Veteran asserts that he has PTSD that was incurred in, aggravated by, or otherwise attributable to, service; or, alternatively that PTSD was proximately caused by, or aggravated beyond its natural progression by, service-connected CAD.

In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  

If the evidence is competent, the Board must then determine if the evidence is credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).   After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) (2016) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F. 3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2017); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304 (f) (2017) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/5).

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1); see also 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). A finding that the Veteran engaged in combat with the enemy requires that the Veteran had participated in events constituting an actual fight or encounter with a military foe, hostile unit, or instrumentality. It does not apply to Veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy.  See VAOPGCPREC 12-99 (October 18, 1999).

Effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity.  See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3).  The amendment provides that, if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary.  Id.  “Fear of hostile military activity” is defined to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.  The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire.

Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  

Evidence and Analysis

Service personnel records show that that the Veteran’s Marine occupation was aircraft structural mechanic with a tour of duty in the Republic of Vietnam.  He was not awarded the Combat Action Ribbon or other combat awards but described hostile attacks on his base.

In the Veteran’s October 1968 separation report of medical examination, a clinician indicated that the Veteran’s psychiatric status was normal.  

In an April 1972 Reserve report of medical history, the Veteran reported that he had not experienced depression or excessive worry; loss of memory or amnesia; frequent trouble sleeping; or nervous trouble of any sort.  The Veteran also reported that he had never attempted suicide.  In the commentary section of this report, a clinician indicated that the Veteran’s psychiatric status was normal.

In a June 2004 VA Form 21-4138, the Veteran noted that he wished to establish a PTSD claim.  The Veteran wrote that he experiences nightmares; wakes up yelling angrily; suffers from depression and anxiety; and is unable to work.

In October 2004, VA received several lay statements from both the Veteran and his spouse.  The spouse reported that the Veteran wakened at times in the late-1970s screaming fragments about watching out and dropping down.  On one occasion, the spouse indicated that she awakened while the Veteran was dreaming “out loud” and the Veteran grabbed her neck and attempted to strangle her.  The spouse also articulated that she believed that the Veteran was too ashamed to seek help.  Lastly, the spouse conveyed that VA would not allow the Veteran to join a program.

In his lay statements, the Veteran indicated that he was assigned to a full repair service unit to repair and make aircraft serviceable in hostile situations, immediately after battle.  During his repair work, the Veteran noted that he was in the midst of hostile actions, sniper fire, mortar attacks, and infiltrations.  The Veteran indicated that he was trained as rifleman.  The Veteran described a temporary assignment in which he secured the perimeter of a base in Vietnam, during which friends died.  Memories of these events cause nightmares.  The Veteran conveyed that this event occurred in March 1968.  The Veteran endorsed the following stressors: 1) an extensive search in which the Veteran was almost shot (from soldiers in a helicopter and snipers) and almost harmed by explosives; 2) memories of body parts and the site of violence; 3) memories of the dead who did not survive the perimeter incident; and 4) feelings of guilt.

2004 and 2015 VA progress notes show that the Veteran attended group-therapy sessions at the Memphis, Tennessee Veterans Affairs Medical Center (VAMC).  A clinician noted that the Veteran experienced anger and agitation; however, medication was somewhat helpful.

In June 2006 correspondence, the Veteran reported that his PTSD still affected him.  In a VA Form 21-0781 of this same month, the Veteran reiterated his accounts of in-service stressors in Vietnam.

In July 2006, the Veteran underwent a VA PTSD examination.  A VA clinician reviewed the claims file; considered that Veteran’s accounts; and conducted an appropriate examination.  The clinician provided a current diagnosis of depressive disorder, not otherwise specified (NOS).  The clinician did not diagnose PTSD.  The clinician indicated that the Veteran would likely benefit from supportive therapy in the future.

In a September 2006 memorandum, a VA coordinator made a formal finding that there was a lack of required information to corroborate the Veteran’s stressors associated with the claim for service connection for PTSD.  Upon delineating the respective steps undertaken, the coordinator noted that the Veteran had not provided necessary specificities (within a two-month range) for either of the stressful incidents that the Veteran contended occurred while in service.

In a January 2008 VA psychology consultation report, a clinician, upon a recapitulation of the Veteran’s accounts, opined that the Veteran symptoms did not appear to have either the intensity or breath to warrant a diagnosis of PTSD.  Depression might better explain the Veteran’s symptoms.

In August 2008, a VA clinician indicated that the Veteran’s PTSD screen was positive and the Veteran’s depression screen was positive.

In January 2009, VA received the Veteran’s Social Security Administration (SSA) medical reports.  These records reflect that the Veteran’s mental health treatment included VA treatment for depression and findings that the Veteran did not meet the clinical criteria for a diagnosis of PTSD.

In a February 2009 mental status examination report, Dr. L., a private clinical psychologist, indicted that the Veteran had a current diagnosis of major depression, recurrent, moderate.  Dr. L specifically ruled out PTSD.

In May 2012, the Veteran underwent a VA PTSD examination.  Upon consideration of the evidence (clinical and lay) as well as the examination findings, this clinician indicated that the Veteran did not meet the applicable criteria for a PTSD diagnosis.

VA received affidavits from the Veteran’s spouse and the Veteran’s daughter in July 2014.  In pertinent part, these parties conveyed that the Veteran has anger outbursts; is prone to yelling; stares into space on occasions; has difficulty managing anger; experiences grisly flashbacks of his time in Vietnam; has difficulty sleeping; has a bad temper; and finds it difficult to express his feelings.

A VA clinician indicated that the Veteran’s PTSD screen was negative in September 2015.

Dr. K., a private physician, rendered an opinion in January 2016, derived via one videoconference (Skype) contact.  Dr. K. wrote that the Veteran has a past medical history of PTSD.  Additionally, Dr. K. reported that postoperative complications related to a coronary artery bypass grafting exacerbated the Veteran’s PTSD.  Dr. K.’s reports include no evaluations, psychological clinical records, or any indication of a review of the claims file.  And, Dr. K. provided rationale to support the finding that postoperative complications related to a coronary artery bypass grafting exacerbated the Veteran’s PTSD.  As such, the Board finds that this opinion warrants minimal probative weight.  See Sklar v. Brown, 5 Vet. App, 140 (2003) (holding that the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion).

In February 2020, the Veteran was afforded a VA PTSD examination.  The clinician indicated that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria.  Rather, this clinician reported that the Veteran’s stressors, which contribute to his depressed mood, include marital and family problems; financial concerns; lack of friends; and chronic pain.  This clinician reported that the Veteran’s claimed PTSD is less likely than not proximately due to or the result of CAD, status post coronary artery bypass grafting.  The clinician’s rationale underscored that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria; thus, there was no onset in service or any possible nexus to any in-service injury, event, ot disease.  The Board recognizes that the clinician did not offer an opinion as to whether PTSD was aggravated beyond its natural progression by, CAD, status post coronary artery bypass grafting.  However, this deficit does not prejudice the interests of the Veteran.  As the clinician indicated that the Veteran does not meet the diagnostic criteria for PTSD.  As a non-existent psychological disability, PTSD cannot be aggravated beyond its natural progression by any service-connected disease entity or disease

The provisions delineated in 38 C.F.R. § 3.304(d) are not for application in the matter as the weight of evidence fails to show that the Veteran has current PTSD.

The Veteran (as well as his spouse and daughter) contend that the Veteran has current PTSD caused by in-service stressors and/or “exacerbated” (aggravated) by CAD, status post coronary artery bypass grafting.  The Board recognizes the Veteran’s belief in these theories of etiology and causation.  Nevertheless, as a lay person, this Veteran lacks the highly specialized psycho-medical training to render complex opinions as to etiology or causation.  See Jandreau, supra.  

For reasons articulated above, the Board assigns minimal probative weight to Dr. K.’s conclusory opinion as to PTSD.  Here, the Board further observes that Dr. K.’s opinion is an outlier among many in person examinations and opinions which fail to disclose a current diagnosis of PTSD.

The Board assigns substantial probative weight to the findings of the February 2020 clinician’s opinion.  This psychological expert reviewed the claims file; considered that Veteran’s accounts; and conducted an appropriate examination.  Applying DSM-5 diagnostic criteria, this clinician indicated that the Veteran does not have current PTSD.  This professional indicated that the Veteran’s stressors, which contribute to his depressed mood, include marital and family problems; financial concerns; lack of friends; and chronic pain.  Moreover, as the Veteran does not meet the DSM-5 criteria for PTSD; PTSD has no connexity to CAD, status post coronary artery bypass grafting.

The Veteran has been awarded service connection for unspecified depressive disorder with unspecified neurocognitive disorder associated with residuals of surgery for CAD.  The occupational and social impact of this disorder is addressed below.  The competent clinicians of record, in whom the Board places substantial probative weight, have not provided a separate mental health disorder with current diagnosis of PTSD.  Thus, service connection for PTSD must be denied on both direct and secondary bases.  See Shedden, Allen, both supra.

The preponderance of evidence is against the Veteran’s PTSD service connection claim and there is no doubt to be resolved.  See 38 U.S.C. § 5107(b); Gilbert, supra.

Increased Disability Ratings

Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4. 

When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider entitlement to staged ratings to compensate for times since filing the 

claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

DM2

The Veteran asserts that the severity of service-connected DM2 warrants a disability rating in excess of 20 percent. 

Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus which requires insulin and restricted diet; or, oral hypoglycemic agent and restricted diet.  38 C.F.R. § 4.119, Diagnostic Code 7913.  A 40 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities.  A 60 percent rating is warranted for diabetes mellitus when it 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 rated.  A 100 percent rating is warranted for diabetes mellitus which 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 rated.

Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Id. at Note (1). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  Id.

The criteria for a higher disability rating under this Diagnostic Code are conjunctive not disjunctive; for assignment of a 40 percent disability rating, there must be insulin dependence (or oral hypoglycemia agents), restricted diet, and regulation of activities.  See Middleton v. Shinseki, 727 F. 3d 1172 (Fed. Cir. 2013) (if disability rating criteria are written in the conjunctive, “a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria).

A review of the Veteran’s VA treatment records from October 2010 shows that clinicians followed the Veteran’s treatment for DM2.  In August 2011, a clinician indicated that the Veteran reported that he did not check his glucose level regularly.  The clinician noted that glucose should be tested daily.  Treatment for DM2 consisted of dietary restriction and use of an oral agent.

Upon review of the Veteran’s SSA medical records received in October 2014, there are multiple notations concerning DM2.  The Veteran indicated that he was taking glyburide orally to control his glucose levels.  Otherwise, the SSA reports are duplicates of VA treatment records and progress notes.

A review of VA treatment records and progress notes from 2013 to 2020 discloses that the Veteran’s treatment of DM2 continued to consist of an oral agent.  These records also show that the Veteran was afforded VA educational programming regarding DM2 control.

In his January 2016 report, Dr. K. indicated that the Veteran had a past medical history of type 2 non-insulin-dependent diabetes.

In October 2020, the Veteran unresent a VA diabetes mellitus examination.  This clinician indicated that the Veteran’s treatment consisted exclusively of a prescribed oral hypoglycemic agent.  The Veteran reported that he experienced bouts of ketoacidosis less than two times a month and bouts of hypoglycemia less than two times a month.  And, the Veteran reported that he had not been hospitalized for ketoacidosis, hypoglycemia, or unintentional weight loss or loss of muscle strength attributable to DM2.  Glucose testing in November 2007 registered at 153 and 141 upon the instant examination.  The clinician opined that DM2 did not impact the Veteran’s ability to work.  In concluding remarks, the clinician reiterated that the Veteran’s DM2 required an oral hypoglycemic without any physical restrictions.

As noted above, to receive a higher disability rating for DM2 there would need to be a showing of that DM2 requires insulin, restricted diet, and regulation of activities.  Such is not disclosed in the evidence of record.

At worst, the Veteran’s DM2 requires use of a hypoglycemic agent.  Indeed, this degree of severity is quite amply contemplated by a 20 percent disability rating.

The Veteran is competent to report his discernable symptoms, as a layperson, he lacks the competence to recommend medical treatment protocols which require highly specialized medical training and knowledge.  See Jandreau, supra.

Neither the Veteran nor his representative have submitted competent medical evidence to support the Veteran’s contention.  See 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006).

The Board assigns significant probative weight to the clinical evidence of record discussed above.  In all instances, VA clinicians and even Dr. K. indicated that the Veteran’s control of DM2 consists wholly of using a hypoglycemic agent.

Considering the above, a preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for DM2.  The benefit-of-the-doubt rule is not for application and the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, supra.

Right lower extremity diabetic peripheral neuropathy

Left lower extremity diabetic peripheral neuropathy

The Veteran asserts that the severity of his service-connected right lower extremity diabetic peripheral neuropathy and left lower extremity diabetic peripheral neuropathy each warrant a disability rating in excess of 10 percent.

Paralysis of the common peroneal nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8521.  Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8621 and 8721. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling.  A 40 percent rating is warranted for: complete paralysis; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes.  38 C.F.R. § 4.124a.

Because reference was made to possible involvement of the sciatic nerve in the July 2015 and November 2019 VA examinations, consideration of the rating criteria for this nerve may be potentially be appropriate.  Rating criteria for paralysis of the sciatic nerve are addressed by Diagnostic Code 8520, where 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.  A 60 percent rating is warranted for severe, incomplete paralysis with marked muscular atrophy.  An 80 percent rating is warranted for: complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620, 8720.

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Evidence and Analysis

In May 2012, the Veteran underwent a VA diabetic sensory-motor peripheral neuropathy examination.  The clinician provided current diagnoses of right and left diabetic peripheral neuropathy of the lower extremities.  The clinician noted that the Veteran “estimated” that he had had symptoms for about one year.  On examination, both the right and left sciatic nerves were normal.  The clinician indicated that these disabilities did not impact the Veteran’s ability to work.  In remarks, the clinician reported that the Veteran endorsed “on-and-off” numbness in his bilateral lower extremities.

A review of the Veteran’s SSA medical records shows that SSA personnel were given copies of the Veteran’s complaints and VA clinician’s notations concerning lower extremities problems.  Upon review of the April 2014 SSA records, these VA records precede the May 2, 2012 effective date of service connection for these disabilities.

A review of 2013 to 2016 VA treatment records shows that the Veteran endorsed intermittent numbness and tingling of the lower extremities on multiple occasions.  Clinicians noted that the Veteran took amitriptyline to control these symptoms.  In June 2015, the Veteran complained of cramping and paresthesias of the lower extremities; at this time, clinicians added methocarbamol to prescribed amitriptyline.

In his January 2016 report, Dr. K. did not address right and left diabetic peripheral neuropathy of the lower extremities.  Dr. K. also submitted a VA Form 21-0960C-10.  Upon review of the Veteran’s lower extremity peripheral nerves, Dr. K. did not indicate any degree of paralysis of the bilateral sciatic, bilateral external popliteal, or bilateral musculocutaneous nerves.  In fact, Dr. K.’s VA Form 21-0960C-10 is wholly silent as to any symptoms of right and left diabetic peripheral neuropathy of the lower extremities.

In a May 2017 VA housebound or permanent need for regular aid and attendance report, a clinician reported that the Veteran occasionally needs assistance from his spouse due to a loss of balance.  This physician also indicated that the Veteran was able to walk without use of a cane of any other walking device.  And, the Veteran is able to dress his lower extremities, despite the Veteran’s endorsement of poor balance.  The Veteran could drive an automobile even with the contended balance problems.

The Veteran’s VA progress notes from 2018-2020 disclose that the Veteran complained about his sensory neuropathy symptoms on multiple occasions.  Clinicians reported that gabapentin was added to the Veteran’s medication  regimen.  Several clinicians indicated that right and left diabetic peripheral neuropathy of the lower extremities have remained stable.

In February 2020, the Veteran underwent a VA peripheral nerves examination.  The Veteran reported that his numbness has worsened over the years.  The Veteran showed decreased light touch, no trophic changes, and no gait abnormalities.  Both right and left radicular group nerves were normal.  The Veteran showed mild incomplete paralysis bilaterally of the sciatic nerve and external popliteal nerve; however, other nerve groups were normal.  The clinician indicated that the Veteran did not require an assistive device in normal locomotion.  The clinician noted the Veteran’s report that he falls off ladders due to right and left diabetic peripheral neuropathy of the lower extremities (in his previous occupation as a contractor).  Hence, the clinician reported that these disabilities impacted the Veteran’s ability to work.

In an October 2020 VA housebound or permanent need for regular aid and attendance report, a VA clinician indicated that the Veteran could drive an automobile.  This clinician indicated that the Veteran did not complain of poor balance; however, the Veteran could not stand long enough to cook or houseclean.  Bilaterally, the Veteran showed no lower extremity limitation of motion, muscle atrophy, contractures, weakness, paralysis, lack of coordination, weight bearing deficits, balance deficits, propulsion deficits, or any other form of lower extremity interferences.  The Veteran could walk without assistance up to 100 yards; reconditioning explained the limitation.

In October 2020, the Veteran underwent a VA examination.  The Veteran reported that his symptoms have worsened. The Veteran showed no light touch results, with the exception of a decrease at the right foot/toes.  The clinician indicated mild incomplete paralysis of the sciatic nerve.  And, the clinician opined that the Veteran right and left diabetic peripheral neuropathies of the lower extremities were mild.

As noted above, to receive a higher disability rating there would need to be a showing of moderate incomplete paralysis of the right and left of the sciatic nerves of the lower extremity.  The competent medical evidence of record fails to disclose this degree of severity bilaterally.

At worst, the clinical evidence of record discloses that right and left diabetic peripheral neuropathy of the lower extremities manifest as mild incomplete paralysis of the sciatic nerve and the external popliteal nerve, as of the February 21, 2020 examination.  Thus, as of this examination, two-identified bilateral peripheral lower extremity nerves revealed mild incomplete paralysis.  Therefore, as of February 21, 2020, the Board finds that the Veteran warrants a 10 percent disability rating each for right lower diabetic peripheral neuropathy of the sciatic and external popliteal nerves and a 10 percent rating each for left lower diabetic peripheral neuropathy of the of the sciatic and external popliteal nerves.

The Board assigns substantial probative weight to the competent clinical evidence of record discussed above.  Prior to February 21, 2020, expert clinicians indicated that right and left diabetic peripheral neuropathy of the lower extremities manifested at worst as mild incomplete paralysis of the sciatic nerve.  And, from February 21, 2020, these disabilities manifested as mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the popliteal nerve.

Considering the above, the Board finds that the Veteran warrants a 10 percent disability rating for right and left lower extremity neuropathy prior to February 21, 2020 and 10 percent rating each for two affected nerves for right and left lower extremity neuropathy from February 21, 2020.

CAD

The Veteran asserts that the severity of service-connected CAD warrants a disability rating in excess of 10 percent. 

Under 38 C.F.R. § 4.104, Diagnostic Code 7017 [Coronary bypass surgery], a 10 percent rating is warranted when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required.

A 30 percent rating is warranted under Diagnostic Code 7017 when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.

A 60 percent rating is warranted under Diagnostic Code 7017 when there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

A 100 percent rating is warranted under Diagnostic Code 7017 when there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also warranted under Diagnostic Code 7017 for 3 months following hospital admission for coronary bypass surgery.

For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used for disability rating purposes.  38 C.F.R. § 4.104.

Evidence and Analysis

In May 2012, the Veteran underwent a VA ischemic heart disease examination.   After interview of the Veteran addressing the functional impact of the Veteran’s ischemic heart disease and the history of his surgical procedure, the clinician estimated a level of 1-3 METS, at which point the Veteran endorsed fatigue when eating, dressing, taking a shower, or walking.  A May 2012 echocardiogram did not reveal evidence of cardiac hypertrophy or dilatation.  May 2012 testing revealed left ventricular ejection fraction (LVEF) of 55-60 percent.  The Veteran reported that his chest wall hurts when he moves around such that it limits physical activities, to include bending, lifting, walking quickly, and even hugging his grandchildren.  The clinician noted that it was not possible to determine that the estimate METS level was assigned only to heart function.  Therefore, the examiner found that the LVEF was a more accurate indication of heart function than the METS estimate and it does not render him unable to perform physical or sedentary employment.  However, the chest wall tenderness is a limiting factor.  Hence, the clinician reported that the Veteran’s CAD impacted the Veteran’s ability to work.  

In a July 2013 account, the Veteran indicated that his chest remains unhealed and it is still painful to move around.  The Veteran reported that the pain is constant.  Even when he raises his voice or laughs, the pain is unbearable.

A review of the Veteran’s SSA medical records shows that SSA personnel were given copies of the Veteran’s complaints and VA clinician’s notations concerning his CAD issues.  Upon review of the April 2014 SSA records, these VA records precede the May 14, 2012 effective date of service connection for this disability.

A review of VA treatment records and progress notes from 2013 to 2020 discloses that VA monitored the Veteran’s cardiac conditioning and status.  The Veteran was advised to watch his weight, as his body mass index (BMI) put him at risk for obesity-related diseases.  The Veteran received weight-control materials and clinicians encouraged him to exercise and to remain mindful of his caloric intake.

In his January 2016 report, Dr. K. provided diagnoses of CAD and previous coronary artery bypass surgery.  Dr. K. noted paradoxical chest wall motion.  In a “narrative summary,” Dr. K. indicated that the Veteran is severely restricted in his activities and “certainly” unable to work.  Dr. K.’s report does not contain reports of any testing.  

The Veteran’s representative has presented several arguments as to the severity of the Veteran’s overall disability picture, emanating from the CAD procedure.  The Board has considered these arguments where they point to competent medical evidence.  To the degree that the representative has made medical findings, the Board assigns arguments minimal probative weight (as the evidence of record fails to disclose that the representative is a trained expert clinician).  See Jandreau, supra.

In the May 2017 VA housebound or permanent need for regular aid and attendance report, a clinician noted the Veteran’s CAD and the Veteran’s limitation of salt intake.  The clinician indicated that the Veteran endorsed occasional dizziness.

The Veteran’s VA progress notes from 2018-2020 disclose that the Veteran complained about his chest pain on multiple occasions. 

In the October 2020 VA housebound or permanent need for regular aid and attendance report, the VA clinician reported that the Veteran had no complaints of dizziness.  The Veteran conveyed that his chest wall pain limited yard work, pushing, lifting, and pulling.

Also, in October 2020 the Veteran underwent another VA heart conditions examination.  The clinician indicated that the Veteran’s CAD had stayed the same and dyspnea occurred upon exertion.  Upon examination, heart rhythm was regular; point of maximal impact was not palpable; heart sounds were normal; jugular-venous distension was absent; lungs were clear; dorsalis pedis and posterior tibial were normal; and there was no peripheral edema.  The Veteran showed no evidence of cardiac hypertrophy or cardiac dilatation.  A September 2020 echocardiogram revealed an LVEF of 60-65 percent and wall motion and thickness were normal.  Interview-based METs testing indicate >3-5 METS.  The Veteran reported that he was unable to lift over 5 pounds and he was unable to push/pull over 10 pounds.  Hence, the clinician indicated that CAD impacted the Veteran’s ability to work, noting that the Veteran was limited to sedentary work.  In concluding remarks, the clinician stated that the Veteran is not limited by CAD; however, the Veteran is limited to a sternotomy and chest reconstruction secondary to CABG chest wound infection.  The clinician noted that he was unable to determine METS level due solely to the cardiac condition without resorting to speculation.  As such, the clinician indicated that LVEF testing results render a more accurate finding regarding the Veteran’s cardiovascular manifestations alone—as such measurement is more clinically objective.  Lastly, the clinician opined that he knows of no work that the Veteran would be able to do.

Regarding assignment of a rating based on METS, one examiner estimated 1-3 METS strictly on the basis of an interview and noted that it was not as representative of heart function as the LVEF of 55-60.  A second examiner noted an inability to provide an interview-based estimate but rather found that the LVEF was a better measure of cardiac performance which was 60-65.  

The Board also considered the ratings assigned to other residuals of the heart surgery that impair the Veteran’s activities and function. He has been awarded service connection and ratings of 40 and 30 percent for right and left pectoralis muscle damage, 20 percent each for right and left brachial plexus neuropathy, and 10 percent for the sternectomy as well as for scars addressed below.  Therefore, considering only the most representative test results. the Board finds that the 10 percent rating best contemplates the degree of heart function alone.  

The Board assigns substantial probative weight to the competent clinical evidence of record discussed above.  

Considering the above, a preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for CAD.  The benefit-of-the-doubt rule is not for application and the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, supra.

Chest scar (scars)

The Veteran asserts that the severity of service-connected chest scar (scars) warrants a disability rating in excess of 10 percent. 

Under Diagnostic Code 7801 (as in effect prior to and after regulatory changes for the rating of scars effective from October 23, 2008) scars of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) warrant a 10 percent rating.  [Under the regulatory changes codified at Diagnostic Code 7801 effective from October 23, 2008, such scars are additionally described as “not of the head, face, or neck, that are deep and nonlinear].

Under Diagnostic 7804, one or two scars that are unstable or painful on examination warrant a 10 percent rating.  A 20 percent rating under Diagnostic Code 7804 requires three or four scars that are unstable or painful, and a 30 percent rating under Diagnostic Code 7804 five or more scars that are unstable or painful.

Note (1) following Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Note (2) following Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.

Note (3) following Diagnostic Code 7804 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic 7804 when applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804.

Evidence and Analysis

In May 2012, the Veteran underwent a VA scars examination.  The clinician indicated that one scar was present on the Veteran’s trunk.  After interviewing the Veteran regarding the CAD procedure, sternal wound, and wound debridement, the clinician indicated that the Veteran reported that one scar was painful.  This scar did not show instability or frequent loss of covering of skin.  Upon examination, the anterior trunk scar was linear and measured 22.5 centimeters.  Specifically, the Veteran endorsed pain in the central chest wall upon movements—lifting, reaching out, and hugging his grandchildren.  The Veteran reported that this pain inhibited his ability to perform household chores and has rendered him unable to “gain and maintain” either physical or sedentary employment.  As such, the clinician indicated limitation of functional impact on the Veteran’s ability to work.

As already noted, the Veteran indicated that his chest remains unhealed and it is still painful to move around in July 2013.

A review of VA treatment records and progress notes from 2013 to 2020 reveals that that Veteran reported scar pain on multiple occasions.  

In his January 2016 report, Dr. K. indicated the presence of a healed median scar with multiple old healed scars located at the sinus tracts which extend throughout the length of the median scar.  Dr. K. provided no findings as to specific measurements, instability, or lack of skin covering.

As already discussed, the Veteran’s VA progress notes from 2018-2020 disclose that the Veteran complained about his chest pain on multiple occasions. 

In October 2020, the Veteran was afforded another VA scars examination.  Upon review of the Veteran’s medical history and treatment, the clinician indicated that the Veteran’s chest incisional scar had stayed the same since its onset.  The Veteran conveyed that his scar causes cramping and pain with any movement of his arms.  Upon examination, the clinician indicated that the scars did not show frequent loss of covering of skin over the scar or instability.  The clinician identified 5 scars measuring, respectively: 1) 24 centimeters X 2.3 centimeters, 2) 3 centimeters X 3 centimeters, 3) 2 centimeters X 1 centimeter; 4) 2 centimeters X 1 centimeter; and 5) 2 centimeters X 1 centimeter.  Only scar (1) was tender to palpation and showed underlying soft tissue damage.  These 5 anterior trunk scars, without underlying damaged tissue, covered a total area of approximately 6 centimeters squared (36 square centimeters).  Anterior trunk scars with underlying tissue damage covered a total area of 64.2 square centimeters.  In addition to pain on movement of the arms, the Veteran endorsed pain upon pushing, pulling, and lifting.  The Veteran indicated that he could not lift more than 5 pounds, perform repetitive work with either arm, or pull/push more than 10 pounds.  As such, the clinician indicated that the scars impacted the Veteran’s ability to work.  In concluding remarks, the clinician opined that there were 4 additional scars (as reported above) along with the scar related to the removal of the Veteran’s sternal bone.

As noted above, to receive an increased disability there would need to be a showing of three or four scars that are unstable or painful.  Again, Note (1) following Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) following Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Note (3) following Diagnostic Code 7804 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic 7804 when applicable. The clinical evidence of records fails to disclose that any of the Veteran’s 5 scars are unstable, even though they are painful.

At worst, the clinical evidence of record discloses that one of the Veteran’s 5 scars is painful, without instability.  A 10 percent disability rating amply contemplates this degree of severity.

The Board assigns substantial probative weight to the competent clinical evidence of record discussed above.  None of these experts, to include Dr. K. in his Skye-derived report, indicated that the Veteran’s chest scar (scars) manifested as three or four scars that are unstable or painful.

Considering the above, a preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for his chest scar (scars).  The benefit-of-the-doubt rule is not for application and the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, supra.

A disability rating in excess of 30 percent for an acquired psychiatric disorder prior to February 27, 2020

The Veteran asserts that his acquired psychiatric disorder warrants a disability rating in excess of 30 percent prior to February 27, 2020.

The RO has evaluated the Veteran’s acquired psychiatric disorder under 38 C.F.R. § 4.130, Diagnostic Code 9435.  The General Rating Formula for Mental Disorders applies to this Diagnostic Code.  See 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440.  Pertinent to this appeal, the General Rating Formula for Mental Disorders are as follows:

A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating is assigned when 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating is assigned when 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 that is 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.

And, a 100 percent disability rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, for the veteran’s own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part “holistic” analysis.  The first step of the analysis is to assess the “severity, frequency, and duration of the signs and symptoms” of the Veteran’s condition.  The second step is to quantify “the level of occupational and social impairment caused by those signs and symptoms.” The third step is to assign an “evaluation that most closely approximates that level of occupational and social impairment.”  See also Mauerhan, 16 Vet. App. 436 (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); and see Vazquez-Claudio, 713 F. 3d 112 (holding that the disability rating schedule for psychiatric disabilities reflects “objectively-observable symptomatology,” and “it is the severity of the effects of the symptoms as described by the examiner that determines the rating.”).  

As all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  See Vazquez-Claudio, supra.

Evidence and Analysis

In May 2012, the Veteran was afforded a VA examination.  The clinician provided diagnoses of adjustment disorder with depressed mood, chronic and depressive disorder, not otherwise specified (NOS).  The clinician indicated that he was unable to differentiate the symptoms attributable to each diagnosis.  Upon review of the Veteran’s mental health history, the clinician opined that the Veteran’s degree of occupational and social impairment is best summarized as a diagnosed mental condition with symptoms that are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  The Veteran reported that he had been divorced and no longer had friends.  The Veteran indicated that he has held approximately 20 jobs and was never fired.  The Veteran reported that he had a GED certificate and completed a semester of junior college.  The Veteran also attended state universities where he studied police science and completed the programs.  He then reported that he successfully worked in this field.  At present, the Veteran is retired.  The Veteran endorsed a current low degree of energy and high degree of fatigue, noting that his constant pain has exacerbated these degrees.  On interview, the clinician indicated that the Veteran expressed markedly diminished interest or participation in significant activities.  The Veteran endorsed difficulty falling or staying asleep and irritability or outbursts of anger.  The clinician reported that chronic sleep impairment applied to the Veteran’s mental health diagnoses.  The Veteran also endorsed stressful events related to service that haunted him.  The clinician articulated that the Veteran’s adjustment disorder is secondary to a type of chest surgery that has left him in pain.  Here, the clinician underscored that the Veteran reported that since surgery he has lost motivation due to pain.

A review of VA treatment records and progress notes from 2013 to 2020 reveals that that Veteran received consultations for his psychiatric issues.  Periodically, clinicians conducted suicide screens.  The Veteran engaged in VA family therapy sessions.

VA received affidavits from the Veteran’s spouse and the Veteran’s daughter in July 2014.  In pertinent part, these lay parties noted that the Veteran has anger outbursts; is prone to yelling; stares into space on occasions; has difficulty managing anger; experience grisly flashback of his time in Vietnam; has difficulty sleeping; has a bad temper; and finds it difficult to express his feelings.  

Upon review of the Veteran’s SSA medical records received in October 2014, there are multiple notations concerning depressive disorder.  Otherwise, the SSA reports are duplicates of VA treatment records and progress notes.

As already discussed, Dr. K. wrote that the Veteran has a past medical history of PTSD in his January 2016 report.  Dr. K. provided neither clinical findings nor a rationale to explain the bald conclusion that postoperative complications related to a coronary artery bypass grafting exacerbated the Veteran’s PTSD.  The Board again notes that this conclusory opinion warrants minimal probative weight.  See Sklar, supra.

In the May 2017 VA housebound or permanent need for regular aid and attendance report, the clinician noted that the Veteran needs supervision and forgets to take medication timely.  Again, this clinician opined that the Veteran drives an automobile.

As noted above, to receive an increased disability rating for acquired psychiatric disorder prior to February 22, 2020, there would need to be a showing of 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

Prior to February 27, 2020, the Veteran’s acquired psychiatric disorder, at worst, manifested in difficulty falling or staying asleep and irritability or outbursts of anger, grisly flashbacks, occasional staring into space, difficulty expressing feelings, a low degree of energy, and a high degree of fatigue.  While the May 2012 clinician opined that the Veteran’s degree of occupational and social impairment is best summarized as a diagnosed mental condition with symptoms that are not severe enough either to interfere with occupational and social functioning or to require continuous medication, the evidence of record discloses that the Veteran followed a regimen of psychoactive medications during this time.

The evidence of record shows that the Veteran interacted with his family throughout this period.  And, the Veteran worked on improving his familial relationships through family therapy sessions.  Moreover, the Veteran was able to drive and was not cut off from the outside world as a shut-in.  As noted above, the Veteran also indicated frustration at his physical inability to hug his grandchildren—another index of close, healthy, and enduring cross-generational social interaction.

Hence, an holistic Bankhead analysis, discerned though the three steps described above, suggests that the Veteran’s degree of occupational and social impairment is no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks

The Board finds that the Veteran is competent to convey discernable symptoms (viz, fatigue) as well as psycho-medical information conveyed to him by competent clinicians.  

Overall, the Board finds that the preponderance of evidence is against granting a disability rating in excess of 30 percent disabling for service-connected acquired psychiatric disorder prior to February 27, 2020.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

A disability rating in excess of 30 percent for an acquired psychiatric disorder from February 27, 2020

Evidence and Analysis

On February 27, 2020, the Veteran underwent a VA examination.  The clinician provided current diagnoses of unspecified depressive disorder and unspecified neurocognitive disorder.  The clinician noted that the Veteran’s cognitive impairment’s path and pattern are unclear due to the Veteran’s and his spouse being poor historians for recall.  Nevertheless, the clinician indicated that the Veteran’s cognitive impairment is affected by probable low-average intellectual functioning, depressive symptoms, history of alcohol abuse, history of CAD, and current chronic pain.  The clinician indicated that the symptoms of the Veteran’s diagnoses overlap.  The clinician opined that the Veteran’s degree of occupational and social impairment is best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The clinician reported that the Veteran remains retired.  The Veteran reported that he stays at home most days watching television, reading Facebook, and following news on his computer.  The Veteran also reported that he attends regular Marine Corps League meeting (if he does not forget).  The Veteran is adjusted to his life schedule but experiences some sadness in mood at not having friends with whom to engage.  The Veteran denied any mental health treatment, suicide attempts, or hospitalizations since his last mental health examination.  The Veteran also indicated that he had not been prescribed any psychotropic medications.  The Veteran endorsed depression and irritable mood because he feels that his spouse and daughter treat him dismissively.  The Veteran also expressed financial concerns, a lack of friends, retirement not meeting expectations, chronic pain, and a poor memory.  The clinician indicated symptoms of depressed mood; anxiety; mild memory loss; impairment of short- and long-term memory; speech intermittently illogical, obscure, and irrelevant; difficulty adapting to stressful circumstances; and impaired impulse control.  On examination, the Veteran was oriented and alert in all sphere, well-groomed, and cooperative.  The clinician reported euthymic mood and congruent affect (with the exception of spousal interaction).  There was no evidence of hallucinations, delusions, suicidal ideations, or homicidal ideations.  However, the clinician indicated impairment of the Veteran’s remote and distant memory and limitations of insight and judgment.  And, the clinician noted that the Veteran’s diagnoses had changed as the Veteran’s depressive symptoms had diminished and a new diagnosis of cognitive disorder had emerged.

In the October 2020 VA housebound or permanent need for regular aid and attendance report, the VA clinician indicated that the Veteran was able to handle money and pay bills for himself, manage his own financial affairs, and appeared alert and oriented.

As noted above, to receive a higher disability rating, there would need to be a showing of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, for the veteran’s own occupation, or own name.   Such is not disclosed in the evidence of record.

At worst, the competent evidence of record discloses that the Veteran’s PTSD manifests as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.

The Board has considered the Veteran’s extensive symptoms.  While these symptoms indicate that acquired psychiatric disorder is productive of deficiencies in most areas, even taken as a totality this inventory does not rise to the level of being productive of total occupational and social impairment.  See Mauerhan, supra.; Vazquez-Claudio, supra.

The evidence of record discloses that the Veteran attends regular Marine Corps League meetings (when he remembers the dates), drives which suggests that the Veteran is not cut off from the outside world as a shut-in.  Additionally, the Veteran is also able to handle money and pay bills for himself and manage his own financial affairs.

Hence, an holistic Bankhead analysis, discerned though the three steps described above, suggests that the Veteran’s degree of occupational and social impairment is no worse than occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood.

The Board finds that the Veteran is competent to report discernable symptoms (viz, sadness) as well as medical information conveyed to him by competent clinicians.  

Overall, the Board finds that the preponderance of evidence is against granting a disability rating in excess of 70 percent disabling for service-connected acquired psychiatric disorder from February 27, 2020.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Accordingly, the criteria for a schedular rating in excess of 30 percent prior to February 27, 2020, and in excess of 70 percent thereafter, for acquired psychiatric disorder have not been met, and the claims must be denied.

TDIU prior to March 14, 2012

The Veteran asserts that he warrants the grant of a TDIU prior to March 14, 2012.  

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  

Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, 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; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

“Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. §§ 4.16(a),

The regulatory scheme for a TDIU provides both objective and subjective criteria.  Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992).  The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation.  

Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b).

Prior to March 14, 2012, the Veteran had the following service-connected disabilities: 1) DM2 at 20 percent, effective from November 6, 2006 and 2) erectile dysfunction at a noncompensable rating, effective from March 23, 2009.

Thus, the Veteran did not meet the schedular requirements for entitlement to a TDIU prior to March 14, 2012.

Nevertheless, the Board will assess whether entitlement to a TDIU was warranted based upon exceptional circumstances.

Upon a July 2006 VA PTSD examination, a clinician indicated that the Veteran would likely benefit from supportive therapy in the future.  This clinician did not report that the Veteran’s acquired psychiatric disorder impacted the Veteran’s ability to work.

In a March 2009 SSA medical consultant review, a physician indicated that the Veteran disability (albeit non-service-connected orthopedic issues) were not severe.

Upon a May 2010 VA DM2 examination, a clinician did not indicate that DM2 impacted the Veteran’s ability to work.

The evidence shows that the Veteran completed his high school degree, two years of junior college, and attended state universities where he studied police science and completed the programs.  The Veteran indicated that he received excellent ratings for 20 different jobs, including police work.  However, the Veteran never submitted a completed VA Form 21-8940, so the nature of these positions must be extrapolated from collateral sources in the evidence of record.  

Upon review of the Veteran’s SSA records, the Veteran worked as a bridge fabricator, a freight carrier, a plasterer, a security agent, a security supervisor, and a steward.  Additionally, the Veteran reported the police work as well as contractor work.  This discloses many years of expertise in fields of contracting, professional driving, industrial-level construction, and security work.  And, notably SSA records show periods of temporary employment indicative of professional adaptability.

Collectively, the Board finds that this combination of education and work experiences, prior to March 14, 2012, were more-than-sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work in several professions.  See Withers v. Wilkie, 30 Vet. App. 139 (2018).

The Board recognizes that prior to March 14, 2012, the Veteran’s DM2 required medication and mindfulness as to caloric intake.

However, these limitations did not rise to the level of rendering the Veteran totally impaired physically, occupationally, or socially.  The evidence of record does not reveal that any one service-connected disabilities, or the entirety of his two service-connected disabilities, precluded him from obtaining and maintaining gainful employment prior to March 14, 2012.

Prior to March 14, 2012, the Veteran’s job skills would have lent themselves to employment in any supervisory capacity or (in light of his extensive professional experiences) a training capacity, in the construction and security industries. 

As already noted, the Veteran did not meet the schedular requirements for entitlement to a TDIU prior to March 14, 2012.  And, the evidence of record fails to reveal that exceptional circumstances existed prior to March 14, 2012 which would warrant consideration under 38 C.F.R. § 4.16(b).

The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.

Accordingly, a TDIU on an extraschedular basis prior to March 14, 2012, is denied.

SMC based on the need for the regular aid and attendance of another person

The Veteran asserts that he is entitled to SMC based on the need for the regular aid and attendance of another person.

Under 38 U.S.C. § 1114(1), SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C. § 1114(1); 38 C.F.R. § 3.350(b).

Need for aid and attendance means being so helpless as to require the regular aid attendance of another person.  38 C.F.R. § 3.350(b).  Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment.

It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made.  The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of SMC based on need for aid and attendance).

For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a).

As of this decision, the Veteran is in receipt of service connection for acquired psychiatric disorder at 70 percent; status post right pectoralis muscle flap reconstruction at 40 percent; status post left pectoralis muscle flap reconstruction at 40 percent; DM2 at 20 percent; brachial plexus right upper extremity at 20 percent; brachial plexus left upper extremity at 20 percent; sternotomy at 10 percent; CAD at 10 percent; chest scar (scars) at 10 percent; right lower extremity diabetic peripheral neuropathy 10 percent each for two nerve systems; left lower extremity diabetic peripheral neuropathy at 10 percent each for two nerve systems; anterior trunk scars at 10 percent; erectile dysfunction as noncompensable; and anterior trunk scars II as noncompensable.  The Veteran is also in receipt of a TDIU and SMC under 38 U.S.C. § 1114(k) for loss of use of a creative organ.

The Veteran first articulated his entitlement to SMC based upon the regular aid and assistance of another person in May 2017, which the RO denied in a June 2017 rating decision.

In the May 2017 VA housebound or permanent need for regular aid and attendance report, the clinician reported that the Veteran occasionally needs assistance from his spouse for locomotion due to a loss of balance.  This clinician also indicated that the Veteran was able to walk without use of a cane or other walking device.  And, the Veteran is able to dress his lower extremities, despite his endorsement of poor balance.  The Veteran could drive an automobile even with the contended balance problems.  The Veteran’s spouse prepares his meals and places the Veteran’s medication in a dispenser and reminds/managers him to take medication at the correct times.  The clinician indicated that the Veteran was continent of both bowel and bladder.  And, the clinician reported that the Veteran can feed himself and maintain his own bodily hygiene,

In the October 2020 VA housebound or permanent need for regular aid and attendance report, the VA clinician indicated that the Veteran could drive an automobile.  This clinician indicated that the Veteran did not complain of poor balance; however, the Veteran could not stand long enough to cook or houseclean.  Bilaterally, the Veteran showed no lower extremity limitation of motion, muscle atrophy, contractures, weakness, paralysis, lack of coordination, weight bearing deficits, balance deficits, propulsion deficits, or any other form of lower extremity interferences.  The Veteran could walk without assistance up to 100 yards; reconditioning explained the limitation.  The clinician indicated that the Veteran was restricted to his home and its immediate vicinity.  However, the Veteran is neither bedridden nor reliant on a prosthetic appliance.  As to avoidance of the hazards of his daily environment, the examiner indicated neither dizziness, loss of memory, nor poor balance.  Typically, the Veteran remains around his house, but the Veteran is able to leave his house as needed.  As to permanent restrictions, the clinician indicated that the Veteran cannot perform repetitive work, including pushing, pulling, or lifting with either upper extremity and he cannot lift any object over 5 pounds or push/pull any object over 10 pounds.  The clinician reported that the Veteran’s alert and oriented status allowed him to manage his financial affairs without assistance, disclosing that a VA social work assessment was not required,  The clinician indicated that there were no life threatening findings that warranted follow-up with the Veteran’s primary care provider (PCP).

While the Board acknowledges that the Veteran experiences difficulties cooking and lifting, the Veteran’s service-connected disabilities do not prevent him from feeding himself as well as taking care of his financial affairs and driving.  While the evidence of record reflects that the Veteran sometimes needs assistance with maintaining balance, it does not reflect that the Veteran is incapable of performing daily hygienic tasks due to service-connected disabilities.  As to protection from the hazards or dangers incident to his daily environment, the evidence of record does not show that the Veteran is incapable of maintaining necessary protection.

The Veteran is competent to report his observations but these observations are not indicative of such a degree of utter helplessness as to require the regular aid attendance of another person is conclusory and not evinced in the competent clinical evidence of record.  

The Board assigns substantial probative weight to the findings of the May 2017 and October 2020 VA clinicians.  This examiner reviewed the claims file; considered the Veteran’s accounts; and conducted an evaluation of the limitations imposed upon the Veteran by his service-connected disabilities,

After carefully weighing the entire record of evidence, the Board finds that the evidence preponderates against a finding that the Veteran’s service-connected disabilities cause him to be so helpless as to require regular aid and attendance of another person.  The Board notes that none of the factors listed in 38 C.F.R. § 3.352(a) have been demonstrated. See Turco, supra. 

An Additional Consideration

SMC at the (s) rate is payable if a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of a TDIU if granted for a single disability; or, on the basis of a temporary total rating.

As noted above, the Veteran is in receipt of service connection for acquired psychiatric disorder at 70 percent; status post right pectoralis muscle flap reconstruction at 40 percent; status post left pectoralis muscle flap reconstruction at 40 percent; DM2 at 20 percent; brachial plexus right upper extremity at 20 percent; brachial plexus left upper extremity at 20 percent; sternotomy at 10 percent; CAD at 10 percent; chest scar (scars) at 10 percent; right lower extremity diabetic peripheral neuropathy at 10 percent each for two nerve systems; left lower extremity diabetic peripheral neuropathy at 10 percent each for two nerve systems; anterior trunk scars at 10 percent; erectile dysfunction as noncompensable; and anterior trunk scars II as noncompensable.  The Veteran is also in receipt of a TDIU and SMC under 38 U.S.C. § 1114(k) for loss of use of a creative organ.

Thus, no single service-connected disability is rated at 100 percent on a schedular basis.  And, the basis of the grant of a TDIU effective from March 14, 2012 is not a single disability.  Lastly, neither the Veteran nor the evidence of record raise the issue of extraschedular consideration.

Therefore, entitlement to SMC at the (s) rate is not warranted in this case.

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. J. Komins, 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.