Citation Nr: 1805768 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-15 874A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder, not otherwise specified (NOS) with sub-threshold posttraumatic stress disorder (PTSD), prior to November 13, 2014; and 70 percent thereafter. 2. Entitlement to a disability rating in excess of 20 percent for Type II diabetes mellitus with erectile dysfunction. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2003 to May 2003, and May 2004 to August 2005. This matter comes to the Board of Veterans' Appeal (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued a 20 percent rating for service-connected diabetes. In a July 2014 rating decision, the RO granted service connection for anxiety disorder NOS, with sub-threshold PTSD and assigned an initial 30 percent rating, effective August 23, 2010. In November 2015 rating action, the RO increased the evaluation to 70 percent effective November 13, 2014. In his May 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The Veteran withdrew his hearing request in October 2017. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, since the grant of service connection the Veteran's anxiety disorder NOS with sub-threshold PTSD has manifested with symptoms that resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood; total impairment has not been not shown. 2. The Veteran's diabetes mellitus with erectile dysfunction is controlled with medication and diet; it does not require regulation of activities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but not higher, for anxiety disorder, NOS with sub-threshold PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Codes 9411, 9434 (2017). 2. The criteria for a disability rating for diabetes mellitus in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119, 126(1999). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Psychiatric Disorder The criteria for evaluating psychiatric disorders, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2016). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 Diagnostic Code 9411 (2017). A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. 38 C.F.R. § 4.130 Diagnostic Code 9411 (2017). A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 Diagnostic Code 9411 (2017). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a) (2016). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score, like an examiner's assessment, must be considered in light of all the evidence of record that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (a) (2017). Treatment records show that the Veteran has consistently reported chronic sleep difficulties with nightmares; intrusive thoughts interfering with sleep and occupational functions; depressed mood; panic attacks; isolation; irritability; hypervigilance; and occasional auditory and visual hallucinations. See VA treatment records from September 2009; March 2010; April 2015 and November 2015. Treatment records reveal GAF scores predominantly at or slightly below 50. See VA treatment records April 2015, November 2015, December 2015, and March 2016. The Veteran underwent a VA examination in August 2011. The Veteran reported a good relationship with his adult children; he has been married, for the second time, since February 2003 with the Veteran describing his current relationship as strained. He noted that he is easily angered upset. The Veteran reported that he attended church and maintained relationships with the pastor and other members. He occasionally would go out with his wife, but felt uncomfortable as he believed people were watching him. His social activities have declined in general since the military. He still enjoyed engaging in sport activities with his children, but he had become less motivated to do so. The Veteran reported that his current quality of work (as a truck driver) was fair. He expressed some auditory and visual hallucinations with intrusive thoughts related to in-service events. The Veteran also indicated that he had been prescribed medication for his mental condition, which he took, but due to his work schedule he had not been able to engage in psychotherapy treatment. On mental status examination, the examiner noted the following symptoms were present: depressed mood, anxiety, suspiciousness, and panic attacks that occur weekly or less, chronic sleep impairment and mild memory loss. The examiner observed that the Veteran was groomed, withdrawn, and guarded; affect was tearful and anxious; and mood was bad. The Veteran reported intermittent depressive symptoms lasting 2 to 7 days, feelings of sadness, reduced motivation, irritability, fluctuating interest, and guilt. The Veteran also reported panic attacks 1 to 2 times per week triggered by loud noises or gun fire. The examiner indicated that the Veteran is currently employed without issues as to his work performance. The examiner indicated that the Veteran's level of occupational and social impairment was best described as occasional decreased in work efficiency and intermittent period of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, care and conversation. The evidence of record also includes evidence from the Veteran's treating VA psychiatrist, Dr. P. In a June 2012 letter, Dr. P. indicated that the Veteran's PTSD symptoms include: severe depression, suicidal thinking, flat affect, frequent panic attacks, impaired memory and concentration, impaired judgment, abstract, and thinking; and an inability to establish social, work and family relations. Dr. P assigned a GAF score of 50. In November 2014, Dr. P. submitted a psychological assessment. Dr. P. gave the Veteran a GAF score of 49 with a guarded prognosis. Dr. P. indicated that the following clinical symptoms were present: deficiencies in family relations, spatial disorientation, deficiencies in mood, persistent irrational fears, difficulty in adapting to stressful circumstances, intrusive recollections of trauma, deficiencies in work or school, unprovoked hostility and irritability, inability to establish and maintain effective relationships, depression affecting ability to function independently; and suicidal ideation. Dr. P. noted marked limitation as to working in coordination or proximity to others and accepting instructions or responding to criticism from supervisors. Dr. P. further indicated that traumatic events can be destabilizing and interfere with completion of work tasks; as a truck driver, the Veteran is constantly exposed to trauma and stress that cause flashbacks, impaired decision making, and insomnia. Dr. P indicated that 2005 is the earliest date in which the description of symptoms and limitations applies. Resolving all doubt in favor of the Veteran, the Board finds that his anxiety disorder NOS with sub-threshold PTSD manifested with symptoms that more closely approximate the criteria for a 70 percent rating since the effective date of service connection. While the VA examiner at the 2011 Compensation and Pension (C&P) examiner determined that the Veteran's overall level of occupational and social impairment was best described as occasional decreased in work efficiency and intermittent period of inability to perform occupational tasks, the Board finds that review of the overall record shows that the evidence more closely approximates the criteria for a 70 percent rating. The Veteran has competently and credibly reported that his symptoms include depression, occasional hallucinations, irritability, fluctuating energy and interest, social isolation, panic attacks, and chronically impaired sleep. Further the Veteran's treating VA psychiatrist, who is familiar with his history and treatment, has determined that his disorder has long been manifested by occupational and social impairment with deficiencies in most areas such as family relations, judgment, thinking, and mood in her June 2012 and November 2014 assessments. Her findings are consistent with a 70 percent rating. Significantly, her assessments also reflect that the Veteran has reported suicidal ideation. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19(2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). The Board further notes that the 2011 C&P examination report does show the Veteran some problems with his mood, thinking and family relations. He also indicated that his current quality of work was only fair. Finally, the Board is also mindful of the Veteran's GAF scores throughout the appeal, which have predominantly been 50 or less. This is reflective of serious symptoms and further supports a 70 percent rating. The Board has considered whether a rating higher than 70 percent is warranted at any time since the grant of service connection, but finds that such a rating is not warranted. The evidence does not demonstrate total occupational and social impairment. Symptoms of a 100 percent rating include gross impairment of thought process and communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, and loss of memory for names of close relative, own occupation, or own name. None of the type of symptoms suggested in the 100 percent criteria has been shown in this case, especially when considering the nature, frequency and severity of the examples provided. Further, despite Dr. P's endorsement of suicidal ideation, it was not noted to be persistent and she did not determine that he was in imminent danger of hurting himself. Also, while the Veteran reported occasional auditory and visual hallucinations during the 2011 C&P examination, these were not noted as persistent and also have not been shown to be severe in nature. The Veteran himself described their frequency as no more than occasional. The Board also notes that for the most part, the Veteran has shown the ability to maintain close social relationships with his children and his wife. He also remains gainful employed despite some difficulties. In short, total social and occupational impairment is not shown. An initial rating of 70 percent, and no higher, is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Diabetes The Veteran seeks a higher rating for his service-connected diabetes mellitus with erectile dysfunction, which is currently rated at 20 percent. Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus 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 mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. The diagnostic code for diabetes mellitus is successive because each higher rating requires the elements of the lower evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). A note to Code 7913 indicates that noncompensable complications are considered part of the diabetic process. Moreover, the note provides that compensable complications of diabetes should be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. VA treatment records show that that the Veteran was on an anti-hyperglycemic regimen, without regulation of activities. In an October 2011 letter from his treating VA clinician, Dr. T., the Veteran was directed to exercise 30 minutes per day, 5 days per week. A March 2016 VA treatment record indicated that the Veteran was exercising 30 minutes a day, 3 times per week. A May 2015 VA treatment record noted that the Veteran reported to the emergency department with increased thirst, polyuria, and reported glucose level of 322. The impression was uncontrolled diabetes and the Veteran was directed to exercise for 30 minutes, 5 times per week. In an August 2017 VA treatment record, a clinician indicated there were no diabetic complications of retinopathy, neuropathy, and nephropathy. The Veteran underwent a VA examination in May 2011. The examiner reviewed the medical records. The examiner noted a 2010 admission for diabetic ketoacidosis. The examiner noted that there was no restriction on ability to perform strenuous activities but, there was a restriction on diet. The Veteran reported symptoms of paresthesia and pain in bilateral lower extremities related to peripheral neuropathy and erectile dysfunction. Upon testing, the examiner noted that the reflex and sensory exams were normal. The examiner indicated that there was no evidence for neurologic disease or other diabetic conditions. The examiner concluded that there was no significant effect on occupation. The May 2011 examiner also conducted an examination related to peripheral nerves. The Veteran reported peripheral neuropathy began in 2008 with progressively worsening since onset. Upon testing, the examiner noted normal detailed reflex exams, sensory exam, detailed motor exam, muscle tone, and gait without other significant findings. Testing included nerve conduction studies and electromyography and which were noted to be normal with no evidence of neuropathy. The examiner indicated that peripheral neuropathy was not associated with diabetes. The evidence of record also includes the private medical records of VA clinicians, Dr. T. and Dr. P. In April 2012, Dr. T. completed a diabetes impairment questionnaire. Dr. T. noted that the Veteran's course of treatment included insulin, regulation of activities, restricted diet, and oral hypoglycemic agent. Dr. T. indicated no neuropathy, retinopathy, or nephropathy was present. Dr. T. opined that the Veteran is not precluded from performing gainful employment due to his diabetes. In October 2014, the Veteran's treating VA psychiatrist Dr. P., also completed a diabetes impairment questionnaire. She noted that treatment includes insulin, restricted diet, regulation of activities, and oral hypoglycemic agents. Dr. P. further noted symptoms include peripheral neuropathy with pain and weakness in feet and hands, dizziness, and frequent urination. Dr. P. gave a diagnosis of moderate to severe neuropathy in right upper extremity; moderate neuropathy in the left upper extremity; and severe bilateral neuropathy in bilateral lower extremities. Dr. P. noted that Veteran has worked diligently with diet, exercise and medications to control diabetes, but he is unable to perform occupation responsibilities due to diabetes. Subsequent VA endocrinology clinic records dated between 2015 and 2017 show the Veteran's diabetes is treated with an anti-hyperglycemic regimen. The records also show that the Veteran was encouraged to exercise, such as walking five times a week for at least 30 minutes. Records show that the Veteran reported he was performing this weekly exercise as recommended, although at times it was difficulty due to his work schedule. There is no indication of diabetic neuropathy by the Veteran's treating clinicians. The competent, credible and persuasive evidence shows that the Veteran follows a restricted diet and takes medication for control of his diabetes. His treatment regimen has not included regulation of activities (avoidance of strenuous occupational and recreational activities) and a finding of diabetic neuropathy is not supported by the probative record. Thus, the criteria for a rating in excess of 20 percent are not met. The criteria are successive in nature and regulation of activities is to be shown by medical evidence. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Although the Board notes that both Dr. P. and Dr. T. both endorsed that the Veteran's diabetes require regulation of activities in their April 2012 and October 2014 assessment questionnaires, this is not supported by the objective findings in the VA medical records including those from the endocrinology department. The Board notes Dr. T.'s letter of October 2011 directed the Veteran to undergo exercise for 30 minutes, 5 days per week. Dr. P. also acknowledged that the Veteran exercised to control his diabetes. Further, VA treatment records do not support a physician directed requirement to alter activities consistent with the regulatory definition. In fact, VA treatment records show the opposite, that the Veteran was encouraged to engage in exercise. As such, the credible, competent and probative evidence does not support regulation of activities to control diabetes in this case. Additionally, the rating schedule provides that noncompensable complications of diabetes mellitus will not be evaluated separately but will be included in the disability rating assigned for service-connected diabetes mellitus because they are considered part of the diabetic process. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The evidence of record indicates that there are no such complications of diabetes mellitus in this case. The Veteran is already in receipt of a separate rating for erectile dysfunction. The medical evidence does not show diagnoses of retinopathy or nephropathy. As to the issue of neuropathy, the Board finds that the most probative evidence of record is the negative objective medical testing and VA treatment records. The May 2011 VA examiner did not find diabetic neuropathy and he indicated that related clinical testing was normal. He noted normal detailed reflex exams, sensory exam, detailed motor exam, muscle tone, and gait; in addition to normal results obtained in nerve conduction studies and electromyography. Dr. T. likewise did not endorse symptoms of neuropathy in his April 2012 assessment. The Board has considered the diabetes assessment questionnaire, completed by Dr.P., but does not find it probative. Dr. P. is not shown to have expertise in diagnosing and evaluating diabetes and its complications. Furthermore, she did not support her findings with any evidence of objective clinical testing. The VA endocrinology clinical records, and other medical records, do not show diagnoses of diabetic neuropathy based on clinical testing. The Board acknowledges that in advancing this appeal, the appellant believes that the Veteran's diabetes was more severe than the assigned disability rating reflects. However, the VA examination report and VA treatment records offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplated the Veteran's descriptions of his symptoms. The preponderance of the evidence weighs against the claim and a rating in excess of 20 percent is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Veteran asserts that service-connected psychiatric and diabetes disabilities affect his employment, the record reflects that he has maintained full-time employment as a truck driver for the past 10 to 20 years. Thus, a claim for a total disability rating based on individual unemployability is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There are no additional expressly or reasonably raised issues presented on the record. ORDER An initial rating of 70 percent, but no higher, for anxiety disorder, not otherwise specified with sub-threshold posttraumatic stress disorder, is granted. A rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs