Citation Nr: 21026183 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-52 615 DATE: April 30, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II with erectile dysfunction and dupuytren’s of the right and left hands is denied. Entitlement to an evaluation is excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for carpal tunnel syndrome (CTS) of the right upper extremity (claimed as peripheral neuropathy of the right upper extremity) is remanded. Entitlement to service connection for CTS of the left upper extremity (claimed as peripheral neuropathy of the left upper extremity) is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) for the period prior to May 3, 2016 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s diabetes mellitus type II has required the Veteran to maintain restricted diet, oral hypoglycemics, and injection of insulin daily; but has not required regulation of activities throughout the entire period on appeal. 2. The evidence of record does not show the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for diabetes mellitus type II with erectile dysfunction and dupuytren’s of the right and left hands have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). 2. The criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and April 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. The Veteran is seeking higher evaluations for his service-connected diabetes mellitus type II and PTSD. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Diabetes mellitus type II The Veteran’s service-connected diabetes mellitus type II is currently evaluated at 20 percent disabling. Diabetes mellitus type II is evaluated under Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 20 percent evaluation is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent evaluation is warranted when diabetes requires one or more daily injection 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. A 100 percent evaluation is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2020). Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 (2020). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the preponderance of the evidence shows that the Veteran's diabetes mellitus required only restricted diet, daily injection of insulin, and an oral glycemic agent during the period on appeal. VA treatment records and VA examinations do not show that the Veteran was required to have regulation of activities due to his diabetes mellitus. See e.g., August 2014 and May 2016 Diabetes Mellitus Disability Benefits Questionnaire (DBQ). Notably, VA treatment records shows that exercise was encouraged by his treating physicians. See e.g., April 2015 MOVE Group Counseling Note (physical activities for weight loss was recommended). Also, the Veteran testified during the September 2020 hearing that his doctor told him to exercise and walk a lot, but he cannot do so at times due to aching and burning of the feet. Thus, the Board finds that the Veteran’s current 20 percent evaluation for diabetes mellitus type II is appropriate, and his increased rating claim for the disability must be denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). The Board notes that the Veteran is receiving special monthly compensation for erectile dysfunction secondary to diabetes mellitus type II. See October 2014 Rating Decision. The Board has considered whether a separate evaluation for erectile dysfunction should be granted. However, 38 C.F.R. § 4.115, DC 7522 specifies that erectile dysfunction must be associated with a deformity of the penis in order to warrant a compensable evaluation for the disability. Here, the evidence of record does not show that the Veteran’s penis is deformed, and he does not contend otherwise. See e.g., May 2016 Male Reproductive System Conditions DBQ. Accordingly, a separate compensable disability rating for erectile dysfunction associated with his service-connected diabetes mellitus type II is not warranted. Further, as to dupuytren’s of the right and left hands, the evidence does not show that the symptoms of the bilateral hand disability amount to a compensable degree. For example, on a May 2016 VA examination for hands and fingers conditions, the Veteran’s range of motion for both hands were all normal without flexion deformities. The examiner noted that there were no gaps between the pad of bilateral thumbs and the fingers, and there was no evidence of pain with use of either hand. Moreover, the Veteran was able to perform repetitive-use testing with at least 3 repetitions for both hands without any additional functional loss or range of motion afterwards. As stated above, a non-compensable disability associated with diabetes mellitus type II is considered as part of the diabetic process and do not warrant a separate evaluation. As such, the Board concludes that the Veteran’s dupuytren’s of the right and left hands should be considered as part of the diabetic process and a separate compensable rating for the disability is not warranted at this time. 2. PTSD PTSD is evaluated under Diagnostic Code 9411. In pertinent part, a 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). On August 2014 VA examination for PTSD, the examiner reported that the Veteran’s mood and affect were euthymic and upbeat. The examiner noted that there were no indicators of gross cognitive deficits. The examiner provided that the Veteran reported difficulties with concentration, but it was not shown during the examination. The Veteran’s current symptoms of depressed mood, mild memory loss, such as forgetting names, directions or recent events were noted. The August 2014 examiner also provided an addendum to the initial examination report and stated that the Veteran endorsed periods of dysphoric mood, increased irritability, low motivation, a negative outlook on life, and feeling helpless, hopeless, and worthless; but it is less likely than not the Veteran’s current depressive disorder is secondary to his PTSD symptoms. On May 2016 VA examination for PTSD, the examiner noted that there was no evidence of hallucinations, delusions, or significant cognitive impairment. The Veteran complained of chronically anxious and dysphoric mood and displayed wide range of affect during the examination. The Veteran’s current symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment were noted. The examiner concluded that the Veteran suffers from mild to moderate social, emotional, and occupational impairment as a result of his PTSD symptoms. During the September 2020 hearing, the Veteran testified that he was experiencing road rage while working as a truck driver due to his PTSD, and he still has road rage while driving. He stated that he is irritable and snaps at his wife for no apparent reasons, but his medication has been helping with those symptoms. He provided that he has racing thoughts when he tries to sleep at night and gets aggravated and angry. The Veteran also testified that he uses CPAP machine during sleep, but he finds it uncomfortable and does not like to use it. The Veteran also submitted a separate statement in September 2020 regarding his PTSD symptoms. He stated that he has: short-term memory issues where he cannot find things just after putting them down or remember names just after being introduced; difficulty in reading road directions and gets very anxious when he is lost; road rage; throws or break objects and gets angry at his wife for no apparent reasons; problems with concentration; inability to sleep for more than 3 to 4 hours at a time; occasional nightmares; fear and anxiety after hearing loud noises such as fireworks, and cars backfiring; inability to make decisions at times due to overthinking; and uncontrollable crying spells when he is reminded of a friend who went missing in service and whose remains were brought home in 2003. The Board finds the Veteran competent and credible to provide his current PTSD symptoms. As stated above, in order to warrant a next higher evaluation of 50 percent for PTSD, the evidence must show that the Veteran’s current PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. The rating criteria provides that the following symptoms may show such level of impairment, although this is not an exhaustive list of symptoms: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Here, evidence of record, including the September 2020 testimony, reveals that the main symptoms of the Veteran’s PTSD as irritability, short temper, depressed mood, sleep impairment, mild memory loss, and difficulty with concentration. Those symptoms are reflected in the 30 percent rating criteria under Diagnostic Code 9411. The Board observes that the Veteran did report that he feels numb or detached from others during a February 2017 primary care visit; but the weight of the evidence does not suggest a severe social impairment. For example, the Veteran reported that he has a strong/good relationship with his wife, children, and 3 siblings. He stated that he has one close friend who he sees several times a week, rides motorcycle together, and attends car club meetings bimonthly. The Board also notes that the Veteran has not displayed flattened affect or had cognitive impairment or panic attacks due to PTSD. The Board acknowledges the Veteran’s competent testimony on his symptoms of chronic sleep impairment, but also notes that he has a severe obstructive sleep apnea which is not service-connected. Thus, the Board concludes that his sleep impairment cannot solely be attributed to his PTSD. Moreover, the Veteran confirmed in the September 2020 statement that he is not experiencing issues with keeping his personal hygiene and that he always takes a shower every night and brushes his teeth in the morning before he goes anywhere. In light of above, the Board finds that the evidence of record does not show that the Veteran’s current symptoms of PTSD results in occupational and social impairment with reduced reliability and productivity. Consequently, the Veteran’s entitlement to an evaluation in excess of 30 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS FOR REMAND The Board notes that the Veteran claimed service connection for peripheral neuropathy of bilateral upper extremities, but a May 2016 VA examination for diabetic sensory-motor peripheral neuropathy conditions revealed that the Veteran does not have a current diagnosis of peripheral neuropathy of upper extremities. Rather, the examiner noted that the Veteran has a history and symptoms of CTS. As such, the RO recharacterized the Veteran’s claim as service connection claims for CTS of the right and left upper extremities. However, the Board finds that more development is necessary prior to final adjudication. In regard to the Veteran’s CTS, the May 2016 examiner noted that he has prior history of right CTS surgical release in 2008, which was not related to his diabetes. See also November 2009 Primary Care Clinic Note (the Veteran reported that he feels like his CTS is “coming back” because his hands are having a tingling and stiff sensation in the morning like he had before) (emphasis added). However, treatment records for his CTS, to include any records regarding the surgical release in 2008, is not of record. As the evidence suggests that there is outstanding treatment record related to his bilateral CTS, the Board finds that a remand is necessary to obtain those records in order to make a fully informed decision. Finally, because a decision on the remanded issues of service connection for CTS of the right and left upper extremities could significantly impact a decision on the issue of the Veteran’s entitlement to TDIU for the period prior to May 3, 2016, the issues are inextricably intertwined. Thus, a remand of the issue of TDIU for the period prior to May 3, 2016 is also required. Accordingly, the matters are REMANDED for the following action: 1. First, the Agency of Original Jurisdiction (AOJ) should contact the Veteran and his attorney to request their assistance in obtaining any outstanding treatment record from VA and private sources for the Veteran’s CTS of the right and left upper extremities. Any records requests and/or responses must be associated with the Veteran’s electronic claims file. 2. After completing the above action and any other necessary development, the issues on appeal, including the inextricably intertwined issue of TDIU for the period prior to May 3, 2016, must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.