HYPERTENSION

Summary

The veteran, who served in the U.S. Army from October 1965 to October 1967, appeals the denial of increased disability evaluations for several service-connected conditions, including coronary artery disease, scar residual of coronary artery bypass graft, type-II diabetes mellitus, and peripheral neuropathies of all four extremities. The veteran also appealed the denial of an earlier effective date for the scar residual. The Board reviewed the evidence, including service treatment records, post-service treatment records, and VA examination reports. For coronary artery disease, the Board found the existing 30 percent rating appropriate, noting the veteran's workload capacity and lack of congestive heart failure or significant functional limitations. For the scar residual, the Board determined it did not meet the criteria for a compensable rating, finding it superficial, not unstable or painful, and not causing limitation of motion or disfigurement, despite the veteran's subjective complaints. The diabetes mellitus claim was denied an increased rating as the evidence did not support the need for regulation of activities beyond insulin and a restricted diet. Similarly, the peripheral neuropathies of the upper and lower extremities were found to be no more than mild incomplete paralysis, supporting the existing 10 percent rating per extremity. The Board granted a 70 percent disability evaluation for PTSD, finding it met the criteria for significant occupational and social impairment, but denied a higher rating as total impairment was not demonstrated. Finally, the claim for an earlier effective date for the scar residual was denied, as the claim for increase was filed on April 29, 2016, and no evidence indicated an earlier ascertainable increase in disability or intent to file prior to that date.

Rationale

Existing 30% rating appropriate; No evidence of congestive heart failure; Left ventricular ejection fraction of 55 percent

Full Decision Text

Citation Nr: 18119898
Decision Date: 07/19/18	Archive Date: 07/19/18

DOCKET NO. 15-06 415
DATE:	July 19, 2018
ORDER
Entitlement to an increased disability evaluation for coronary artery disease, status-post bypass, currently rated as 30 percent disabling, is denied.
Entitlement to an increased disability evaluation for scar, residual of coronary artery bypass graft, initially rated as noncompensable, is denied.
Entitlement to an increased disability evaluation for diabetes mellitus, type-II, currently rated as 20 percent disabling, is denied.
Entitlement to an increased disability evaluation for peripheral neuropathy of the left upper extremity, currently rated as 10 percent disabling, is denied.
Entitlement to an increased disability evaluation for peripheral neuropathy of the right upper extremity, currently rated as 10 percent disabling, is denied.
Entitlement to an increased disability evaluation for peripheral neuropathy of the left lower extremity, initially rated as 10 percent disabling, is denied.
Entitlement to an increased disability evaluation for peripheral neuropathy of the right lower extremity, initially rated as 10 percent disabling, is denied.
Entitlement to an increased, 70 percent disability evaluation for posttraumatic stress disorder (PTSD) is granted.
Entitlement to a disability evaluation in excess of 70 percent disabling for PTSD is denied.
Entitlement to an effective date prior to April 29, 2016 for the award of service connection for scar, residual of coronary artery bypass graft, is denied.
FINDINGS OF FACT
1. The Veteran’s coronary artery disease, status-post bypass, is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue; there is no chronic congestive heart failure and the Veteran has left ventricular dysfunction with an ejection fraction of 55 percent.
2. The Veteran’s scar, residual of coronary artery bypass graft, is not at least 6 inches square, deep and nonlinear, unstable, or painful; there are no disabling effects due to the scar.
3. The Veteran's diabetes requires insulin and restricted diet, but not regulation of activities.
4. Right lower extremity peripheral neuropathy is manifested by mild incomplete paralysis of the sciatic nerve.
5.  Left lower extremity peripheral neuropathy is manifested by mild incomplete paralysis of the sciatic nerve.
6.  Right upper extremity peripheral neuropathy is manifested by mild incomplete paralysis of the ulnar nerve.
7.  Left lower extremity extremity peripheral neuropathy is manifested by mild incomplete paralysis of the ulnar nerve.
8. The Veteran’s PTSD most closely approximated occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as disturbance of mood and motivation, irritability, anxiety, sleep impairment, and depression; total occupational and social impairment was not shown.
9.  On April 29, 2016, the Veteran filed a claim of entitlement to a total disability rating based on individual unemployability (TDIU) on the basis of his service-connected coronary artery disease and diabetes mellitus; upon examination, the Veteran was found to have a scar, residual of coronary artery bypass.  At the time of the April 29, 2016 claim, there were no prior claims for service connection of a scar, residual of coronary artery disease, status-post bypass graft; there were also no prior claims for an increased disability evaluation for the service-connected coronary artery disease.
CONCLUSIONS OF LAW
1. The criteria for a disability evaluation in excess of 30 percent for coronary artery disease, status-post bypass, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.100, 4.104, Diagnostic Code 7005 (2017).
2.  The criteria for a compensable disability evaluation for scar, residual of coronary artery bypass graft, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801 – 7805 (2017).
3. The criteria for a rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.
  The criteria for a compensable disability evaluation for scar, residual of coronary artery bypass graft, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801 – 7805 (2017).
3. The criteria for a rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017).
4.  The criteria for a disability evaluation in excess of 10 percent have not been met for right lower extremity peripheral neuropathy.  38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §4.124a, Diagnostic Code 8520 (2017).
5.  The criteria for a disability evaluation in excess of 10 percent have not been met for left lower extremity peripheral neuropathy.  38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §4.124a, Diagnostic Code 8520 (2017).
6.   The criteria for a disability evaluation in excess of 10 percent have not been met for right upper extremity peripheral neuropathy.  38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §4.124a, Diagnostic Code 8515 (2017).
7.  The criteria for a disability evaluation in excess of 10 percent have not been met for left upper extremity peripheral neuropathy.  38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §4.124a, Diagnostic Code 8515 (2017).
8. The criteria for a disability rating of 70 percent, but no higher, for PTSD are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).
9. The criteria for the award of an effective date prior to April 29, 2016 for the grant of entitlement to service connection for scar, residual of coronary artery bypass graft, have not been met.  38 U.S.C. §§ 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from October 1965 to October 1967. 

This case came before the Board of Veterans’ Appeals (Board) on appeal of May 2014, November 2015, and July 2016 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1);
 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).
In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran.  These letters explained the evidence necessary to substantiate the Veteran’s claims of entitlement to increased disability ratings and the legal criteria for entitlement to such benefits; the claim for an earlier effective date is downstream from the grant of service connection for a residual scar.  The letters also informed him of his and VA’s respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim.  38 C.F.R. § 3.159(c)(4).
The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claims. The examination reports and treatment records contain all the findings needed to rate the Veteran’s service-connected disabilities on appeal, including history and clinical evaluation.  See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).  
The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Increased Rating
Disability Evaluation
Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the service-connected disabilities on appeal have not materially changed and uniform evaluations are warranted for the rating period on appeal.
1. Entitlement to an increased disability evaluation for coronary artery disease, status-post bypass, currently rated as 30 percent disabling,
The Veteran’s coronary artery disease, status-post bypass, is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005.  
Diagnostic Code 7005 provides for a 10 percent evaluation for a workload greater than 7 METs but not
enderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the service-connected disabilities on appeal have not materially changed and uniform evaluations are warranted for the rating period on appeal.
1. Entitlement to an increased disability evaluation for coronary artery disease, status-post bypass, currently rated as 30 percent disabling,
The Veteran’s coronary artery disease, status-post bypass, is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005.  
Diagnostic Code 7005 provides for a 10 percent evaluation for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. 
A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 
A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or 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 for chronic congestive heart failure, or when 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.  38 C.F.R. § 4.104, Diagnostic Code 7005.
A note prior to the Diagnostic Code explains that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters 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.  38 C.F.R. § 4.104, Note (2).
VA revised the regulation that pertains to the evaluation of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020, effective from October 6, 2006.  See 38 C.F.R. 4.100.  The revised regulation did not alter the rating criteria under Diagnostic Codes 7005-7006 as outlined above; however, it contains the following new provisions:  (1) in all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained.  (2) even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis.  (3) if left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability.
After a review of all the evidence, the Board finds that the Veteran’s service-connected coronary artery disease, status-post bypass graft, more nearly approximates the criteria for the current 30 percent disability evaluation.  The Board finds that the Veteran’s symptoms have been relatively consistent, and that the 30 percent evaluation takes into account the Veteran’s complaints of occasional dyspnea and fatigue, as well as the findings of a left ventricular ejection fraction of 55 percent echocardi
 fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability.
After a review of all the evidence, the Board finds that the Veteran’s service-connected coronary artery disease, status-post bypass graft, more nearly approximates the criteria for the current 30 percent disability evaluation.  The Board finds that the Veteran’s symptoms have been relatively consistent, and that the 30 percent evaluation takes into account the Veteran’s complaints of occasional dyspnea and fatigue, as well as the findings of a left ventricular ejection fraction of 55 percent echocardiogram in March 2012.  The Board acknowledges that the VA examiner used an interview to determine a METs estimate at the June 2016 VA examination; the METs estimate was >5 – 7.  Nonetheless, the Veteran’s VA examination report and treatment records reflect that there is no evidence of congestive heart failure or functional limitations due to cardiac symptomatology; at the June 2016 VA examination, the Veteran was asymptomatic and there was no evidence of cardiac hypertrophy or dilation, ischemia, arrhythmia, edema, heart valve disorder, or pericardial adhesions.  An April 2015 EKG was reviewed; the results were normal.   These findings are consistent with a 30 percent disability rating.  
Accordingly, entitlement to a disability rating in excess of 30 percent, for coronary artery disease, status-post bypass, is denied.
2. Entitlement to an increased disability evaluation for scar, residual of coronary artery bypass graft, initially rated as noncompensable
The Veteran’s service-connected scar, residual of coronary artery bypass graft, is rated as noncompensable pursuant to Diagnostic Code 7805.  See 38 C.F.R. § 4.20.  
Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.
Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: scar is 5 or more inches (13 or more centimeters) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).
Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling.  Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801.
Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion.  Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling.  Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.
Diagnostic Code 7804 pertains to unstable or painful scars.  Five or more scars that are unstable or painful are 30 percent disabling.  This is the highest rating available under this Diagnostic Code. Note (1) to 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.  38 C.F.R. § 4.118, Diagnostic Code 7804.
After a review of all the evidence, the Board finds that the Veteran’s scar, residual of coronary artery bypass graft, does not approximate the criteria for a higher, compensable disability evaluation
 38 C.F.R. § 4.118, Diagnostic Code 7802.
Diagnostic Code 7804 pertains to unstable or painful scars.  Five or more scars that are unstable or painful are 30 percent disabling.  This is the highest rating available under this Diagnostic Code. Note (1) to 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.  38 C.F.R. § 4.118, Diagnostic Code 7804.
After a review of all the evidence, the Board finds that the Veteran’s scar, residual of coronary artery bypass graft, does not approximate the criteria for a higher, compensable disability evaluation for the entire rating period under Diagnostic Codes 7801 through 7805.  The objective clinical evidence of record, namely the June 2016 VA examination, shows that the Veteran’s scar, residual of coronary artery bypass graft, is manifested by a linear scar that measures 19 cm by .2 cm.  As such, the Veteran’s scar does not exceed 6 square inches.  Likewise, the scar is superficial, without skin breakdown, keloid formation, inflammation, or edema.  Furthermore, there is no medical evidence that shows that his scar is unstable or painful; there were no pain or unstable skin in the area of his scar upon evaluation in June 2016.  Additionally, the scar is not productive of adherence, and the Veteran’s does not cause limitation of motion or disfigurement.  The Board observes that the Veteran has not made any complaints related to his scar, residual of coronary artery bypass graft, and that his VA treatment records do not show any related treatment.  Therefore, a higher, compensable rating is not warranted for his scar, residual of coronary artery bypass graft, under Diagnostic Code 7805.  See 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-7805.
To the extent that the Veteran contends that a higher, compensable rating should be assigned, the Board notes that a veteran is competent to report symptoms that he experiences at any time.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, the medical findings (as provided in the examination reports and clinical findings) directly address the criteria under which his scar, residual of coronary artery bypass graft, is being evaluated.  To the extent that he reports that the scar is painful, he is competent.  However, we find the examination report detailing that the scar is not painful to be more credible and more probative.  As such, the Board finds the examination report to be more probative than the Veteran’s subjective evidence of complaints of increased symptomatology.
3. Entitlement to an increased disability evaluation for diabetes mellitus, type-II, currently rated as 20 percent disabling
The Veteran’s diabetes mellitus is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  According to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet.  A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities.  A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated
Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.”  This definition also applies to the “regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913.  Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364.  In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings.
regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913.  Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364.  In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings.  Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009).
In this case, the evidence reflects that the Veteran’s diabetes mellitus requires insulin and a restricted diet.  The dispositive question is therefore whether it also requires regulation of activities.  The Board finds that it does not.
The Veteran contends that he warrants a rating in excess of 20 percent because when he was first awarded a 20 percent rating for diabetes, he was not taking insulin but since that time he has been put on insulin. He does not contend that he warrants a higher rating due to his diabetes requiring the regulation of activities.
At the June 2016 VA examination, the VA examiner noted, after examining the Veteran and reviewing the claims file, that the Veteran's diabetes was treated by restricted diet, oral hypoglycemia agents, and insulin injections once per day.  The examiner specifically noted that the Veteran’s diabetes mellitus did not require regulation of activities as part of medical management.
As such, the Board finds that there is no medical evidence of “avoidance of strenuous occupational and recreational activities.”  The Veteran did not indicate that any physician had told him to regulate his activities due to his diabetes.  The Board acknowledges the Veteran's contentions that his diabetes has worsened since it was initially service connected and that he now must take insulin whereas before he did not.  However, the weight of the evidence is against a finding that the Veteran’s diabetes mellitus requires regulation of activities.  As the higher ratings all require regulation of activities, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's diabetes. The benefit of the doubt doctrine is thus not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 

4.  Entitlement to an increased disability evaluation for peripheral neuropathy of the right and left upper extremities, each currently rated as 10 percent disabling.
The Veteran was assigned disability ratings for his peripheral neuropathy of the right and left upper extremities in accordance with the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8515.  See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous).   The Veteran’s peripheral neuropathy of the right and left upper extremities is rated as 10 percent disabling per upper extremity.
Under Diagnostic Code 8515, for the major wrist, a 10 percent evaluation is assigned for mild incomplete paralysis; a 30 percent rating requires moderate incomplete paralysis; and a 50 percent rating requires severe incomplete paralysis. A 70 percent disability rating requires complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances.  See 38 C.F.R. § 4.124a, Diagnostic Code 8515. 
Under Diagnostic Code 8515, for the minor wrist, a 10 percent rating requires mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis.  A 40 percent rating requires severe incomplete paralysis.  A 60 percent disability rating requires complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index
 right angles to palm; flexion of wrist weakened; and pain with trophic disturbances.  See 38 C.F.R. § 4.124a, Diagnostic Code 8515. 
Under Diagnostic Code 8515, for the minor wrist, a 10 percent rating requires mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis.  A 40 percent rating requires severe incomplete paralysis.  A 60 percent disability rating requires complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances.  See 38 C.F.R. § 4.124a, Diagnostic Code 8515. 
The Veteran contends that higher disability ratings are warranted for his peripheral neuropathy of the right and left upper extremities.  The Veteran is right-hand dominant.  This was confirmed in the June 2016 VA examination report.
After a review of the evidence, the Board finds that for the entire rating period on appeal the Veteran’s service-connected peripheral neuropathy of the right and left upper extremities more nearly approximates the criteria for the currently assigned 10 percent disability rating for each upper extremity for the rating period on appeal.   The Veteran’s peripheral neuropathy of the right and left upper extremities has been characterized by no more than mild incomplete paralysis of the median nerve.   According to the June 2016 VA examination report, the Veteran denied experiencing upper extremity pain.  He denied experiencing paresthesias of the upper extremities, but reported that he experienced numbness.  Upon examination, muscle strength was normal, and deep tendon reflexes were 2+ bilaterally; sensory examination of the upper extremities was also normal, although there was decreased sensation to light touch in the hands and fingers.  There was decreased sensation to vibration, but nerve testing was normal.  The Board acknowledges that the Veteran complained of symptoms at this examination, but points out that he had full fist closure without pain and objective manifestations did not show that the Veteran has moderate or severe incomplete paralysis of the median nerve.  
In conclusion, the evidence of record reveals manifestations consistent with a 10 percent disability rating per upper extremity, but no higher, for peripheral neuropathy of the right and left upper extremities for the entire rating period.  38 C.F.R. §§ 4.3, 4.7.
5.  Entitlement to an increased disability evaluation for peripheral neuropathy of the right and left lower extremities, each currently rated as 10 percent disabling.
The Veteran is currently assigned a 10 percent disability evaluation, per lower extremity, for right lower extremity peripheral neuropathy and a 10 percent disability evaluation for left lower extremity peripheral neuropathy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520.
Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve.  A 20 percent evaluation is assigned for moderate incomplete paralysis and a 30 percent disability rating requires moderately severe incomplete paralysis.  A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy.  An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  
The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a).
After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran’s right and left lower extremity peripheral neuropathy is no more than mild.  The evidence of record does not show that he experiences moderate incomplete paralysis of the right or left sciatic nerve.  At the June 2016 VA examination, the VA examiner described the Veteran’s neurological manifestations as mild.  To that extent, the Board points out that the Veteran had a normal
 regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a).
After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran’s right and left lower extremity peripheral neuropathy is no more than mild.  The evidence of record does not show that he experiences moderate incomplete paralysis of the right or left sciatic nerve.  At the June 2016 VA examination, the VA examiner described the Veteran’s neurological manifestations as mild.  To that extent, the Board points out that the Veteran had a normal sensory examination of the upper anterior thigh and thigh/knee; there was decreased sensation of the foot and toes and lower leg/ankle.  Likewise, his reflexes were decreased, but intact; muscle strength was full and there was no evidence of atrophy.  Therefore, his symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation for mild incomplete paralysis of the sciatic nerve.  In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124.  The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent, per lower extremity, for right and left lower extremity peripheral neuropathy for the entire appeal period, and the appeal for a rating in excess of 10 percent is denied.  38 C.F.R. §§ 4.3, 4.7. 
6.  Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling
The Veteran’s PTSD is evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.  
A 50 percent disability rating requires 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  
For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as:  suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 100 percent rating is provided 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; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. §§ 4.125-4.130.
When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment.  See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list.  Nevertheless, 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 rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713
.Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list.  Nevertheless, 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 rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 117–18.
After a review of all the evidence, the Board finds that the Veteran’s service-connected PTSD more nearly approximates the criteria for a 70 percent disability evaluation for the entire rating period on appeal.  The Board finds that the Veteran’s psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran’s social and occupational impairment.  Throughout the rating period on appeal, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as mild memory loss, depression, anxiety, and sleep impairment, as demonstrated by the findings at the June 2016 VA examination, as well as his VA treatment records.  
The Veteran complained of sleep impairment, irritability, hypervigilance, panic attacks, hyperstartle response, anxiety, and depression at his VA examination and in seeking treatment at VA.  He also reported experiencing nightmares, loss of motivation, flashbacks, and feelings of helplessness.  He also related that he experiences passive suicidal ideation and poor impulse control due to anger and irritability.  A 70 percent disability evaluation accounts for the Veteran’s social and occupational impairment, as caused by these symptoms.
The evidence does not show that the Veteran experienced total occupational and social impairment due to his symptoms during the entire rating period on appeal.  He does not have manifestations such as grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Codes 9411-9433.  As previously discussed, the Board acknowledges that the Veteran’s symptoms of PTSD are suggestive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as depression, irritability, sleep impairment, panic attacks, and disturbances of mood and motivation.  However, the record does not show that these symptoms along with other symptoms of his PTSD result in total occupational and social impairment.  Further, the VA examination report and treatment records indicate that the Veteran is able to communicate effectively and that he is alert and oriented, with appropriate speech and normal thought processes; he also had good hygiene and fair judgment and insight.  
Although fluctuations in symptomatology and overall impairment are inevitable during the course of such a lengthy appeal period, the Board reiterates that the Veteran’s symptoms are nearly the same as those listed in the criteria for a 70 percent rating and the examiner’s characterization of these symptoms were indicative of at most moderately severe impairment caused by the disorder.  Moreover, there was no specific indication to the contrary in the Veteran’s statements.  The Board also recognizes that the Veteran has occupational and social impairment.  However, the Veteran does not lack social relationships; he is married and lives with extended family.  Together his symptoms do not demonstrate such frequency, severity and duration to equate with total occupational and social impairment.   
For these reasons, the Board finds that the evidence supports a finding of a 70 percent evaluation, but no higher, for the entire rating period on appeal.  38 C.F.R. §§ 4.3, 4.7. 
Earlier Effective Date
Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C. § 5110(a).  The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release.  38 U.S.C. § 5110(b)(1).  
A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C
 final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C. § 5110(a).  The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release.  38 U.S.C. § 5110(b)(1).  
A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p) (2017).   The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2).  These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are applicable in the present case. Id. at 57,686.
The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates.  A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  
There are exceptions to this general rule, in 38 U.S.C. § 5110, but none are applicable in this case, as shown below.
Finally, the Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision.  Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error (CUE); in short, in the absence of CUE, a final and binding RO decision will be accepted as correct.  The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim.  Rather, the proper course of action would have been to dismiss the appeal.  The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date.  Flash v. Brown, 8 Vet. App. 332 (1995).
In arguing for the assignment of earlier effective date for the awards of service connection for a scar, residual of coronary artery bypass graft, the Veteran argues that his award of service connection should be retroactive; the Veteran did not specify a retroactive effective date to which he felt entitled, nor did he state his reasons for seeking an earlier effective date.  See e.g. September 2016 Notice of Disagreement.  The Board assumes that the Veteran contends that his scar should have been service connected from the same date as that assigned for the Veteran’s service-connected coronary artery disease.
A review of the Veteran’s claims file indicates that, in April 2016, the Veteran filed a claim for TDIU and increased disability evaluations of his service-connected disabilities, including his service-connected coronary artery disease.  
In June 2016, the Veteran was afforded a VA examination in connection with his claim for an increased disability rating for his coronary artery disease; at that time, the VA examiner noted that the Veteran had a scar due to his 2012 coronary artery bypass graft, which measured 19cm long by .2cm wide.
In July 2016, the Veteran was notified that a July 2016 rating decision had granted service connection for a scar, residual of coronary artery bypass graft, and assigned an effective date of April 29, 2016.  
Here, the Veteran’s claim for an increase was received on April 29, 2016.  There is simply no indication of the Veteran’s intent to file a claim for increase of his service-connected coronary artery disease or related scars prior to April 2016, nor does the Veteran assert that he filed a claim for increase prior to that date.  
In this case, as previously discussed, no claim was received
2 coronary artery bypass graft, which measured 19cm long by .2cm wide.
In July 2016, the Veteran was notified that a July 2016 rating decision had granted service connection for a scar, residual of coronary artery bypass graft, and assigned an effective date of April 29, 2016.  
Here, the Veteran’s claim for an increase was received on April 29, 2016.  There is simply no indication of the Veteran’s intent to file a claim for increase of his service-connected coronary artery disease or related scars prior to April 2016, nor does the Veteran assert that he filed a claim for increase prior to that date.  
In this case, as previously discussed, no claim was received by the RO prior to April 29, 2016, and no intent to apply for benefits related to his service-connected coronary artery disease was evidenced prior to that date.  As noted, the Veteran does not assert that he submitted a formal or informal claim prior to that date.  To this point, the Board reiterates that a claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p), 3.155 (2017).  The Board notes that such a claim must be filed on a form prescribed by the Secretary.  Thus, the Board finds that the date the Veteran’s claim for compensation for scar, residual of coronary artery bypass graft, is April 29, 2016.  Now, the question is when it was factually ascertainable that an increase in disability occurred.
For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2).  In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992).  Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.”  Hazan, 10 Vet. App. at 521.
The Board acknowledges that the Veteran’s June 2012 VA examination report did not indicate that the Veteran had a scar; the evidence of record shows that the Veteran underwent bypass surgery in August 2012.  As such, the medical evidence of record shows that the Veteran experienced an increase in his symptoms, namely a scar, due to his coronary artery disease prior to April 29, 2016.  However, the Board finds that the record reflects that although the Veteran manifested a scar due to his service-connected coronary artery disease within one year of the grant of service connection for coronary artery disease, he did not file a claim for an increase within one year.  
The Board notes that, under Harper, an increase in symptomatology more than one year prior to the date of claim requires an effective date no earlier than the date of claim.  The Veteran did not make any complaints related to his scar prior to the date of the claim for an increase and the evidence did not show any evidence of symptoms until he appeared for the June 2016 VA examination.  As such, an effective date of April 29, 2016, the date of receipt of his claim for an increase of the Veteran’s service-connected coronary artery disease, status post bypass graft, is the proper effective date for the grant of entitlement to service connection for a scar, residual of coronary artery bypass graft.  See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
Further, to the extent that the Veteran is asserting a freestanding claim for an earlier effective date was submitted prior to the April 29, 2016 date, there can be no such valid claim because such a claim vitiates the rule of finality.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Under such circumstances, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. 
Accordingly, the Veteran's claim for an effective date prior to April 29, 2016, for service connection for a scar, residual of coronary artery bypass graft, must
38 C.F.R. § 3.400(o)(2).
Further, to the extent that the Veteran is asserting a freestanding claim for an earlier effective date was submitted prior to the April 29, 2016 date, there can be no such valid claim because such a claim vitiates the rule of finality.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Under such circumstances, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. 
Accordingly, the Veteran's claim for an effective date prior to April 29, 2016, for service connection for a scar, residual of coronary artery bypass graft, must be denied.

 
GAYLE STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Hallie E. Brokowsky, Counsel