Citation Nr: 18140909 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-14 434 DATE: ORDER Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus, type II, is denied. Entitlement to an initial disability rating of 70 percent, but no greater, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for peripheral edema of the lower extremities, to include as secondary to hypertension, is remanded. Entitlement to service connection for kidney stones is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s diabetes mellitus, type II, was managed by a restricted diet only. 2. For the entire period on appeal, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas, but not by total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating for diabetes mellitus in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. The criteria for an initial 70 percent disability rating, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1971. He had additional service in the Texas Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an April 2014 substantive appeal (VA Form 9), the Veteran indicated that he wished to appeal the issues of PTSD and neuropathy related to his diabetes mellitus. The RO interpreted the VA Form 9 as a substantive appeal for PTSD and as a new service-connection claim for neuropathy and radiculopathy, which was adjudicated in a September 2014 rating decision. In a November 2014 Notice of Disagreement, the Veteran stated that he disagreed with the RO’s decisions with regard to neuropathy, diabetes mellitus, and PTSD. The Veteran was asked to clarify which issues he wished to appeal in a December 2014 VA letter. In response, the Veteran indicated that the appeal should include diabetes mellitus, kidney stones, peripheral edema of the lower extremities, and hypertensive vascular disease. See December 2014 Statement in Support of Claim. The RO issued a supplemental statement of the case (SSOC) in October 2016 that included all of these issues. In a September 2017 Deferred Rating, VA concluded that the only issue on appeal was PTSD, as the substantive appeal for diabetes mellitus, kidney stones, peripheral edema of the lower extremities, and hypertension were untimely filed. Subsequently, a SSOC for PTSD was issued in April 2018. The Board recognizes that the Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Board finds that VA has waived this requirement by accepting the Veteran’s December 2014 Statement in Support of the Claim and by issuance of the October 2016 SSOC for PTSD, diabetes mellitus, kidney stones, peripheral edema and hypertension. These five issues are currently before the Board. The Board adds that the Veteran has disagreed with the RO’s September 2014 decision to deny entitlement to service connection for carpal tunnel syndrome of the left and right upper extremities, and radiculopathy of the left and right lower extremities. The RO has acknowledged receipt of this disagreement, and is aware that additional action is necessary to advance the appeal. As such, the Board will not take jurisdiction of the issues at this time for the sole purpose of remanding them with instructions to the RO to issue a Statement of the Case. Finally, additional relevant evidence in the form of VA treatment records have been added to the Veteran’s claims file since his appeal was last adjudicated by the agency of original jurisdiction (AOJ). The Veteran has specifically waived consideration of such evidence by the AOJ in the first instance. See an October 1, 2018 Additional Evidence Response Form. INCREASED RATING A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a disability evaluation in excess of 10 percent for diabetes mellitus, type II. Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. 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 regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The criteria for rating diabetes mellitus are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met). The Veteran was diagnosed with diabetes mellitus, type II, in April 2010. See April 2010 VA examination report. While the April 2010 VA examination report indicated that the Veteran was to start taking metformin to control his blood sugar, VA treatment records and the Veteran’s lay statements report that his diabetes mellitus, type II, is controlled solely by diet and exercise and that the Veteran has not taken medications to control his diabetes mellitus, type II. See October 2010 Veteran Statement (stating that doctors have recommended diet and exercise only); October 2010 Primary Care Note (indicating that diabetes mellitus is diet controlled.); April 2011 VA examination report (indicating that diabetes mellitus is controlled by a diet and exercise program only); November 2014 Diabetic Retinopathy Surveillance Consult Note (indicating the current diabetes therapy is diet only.) Under Diagnostic Code 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. As the Veteran’s diabetes mellitus, type II, is controlled by diet and exercise only, with the use of no insulin or oral hypoglycemic agent, a disability rating in excess of 10 percent is not warranted. 2. Entitlement to an initial disability rating of 70 percent for PTSD. PTSD is evaluated under the general rating formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms “occupational and social impairment with deficiencies in most areas” and “total occupational and social impairment” in 38 C.F.R. § 4.130 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). As this matter was certified to the Board in July 2018, which is after the August 4, 2014 implementation of the DSM-5, the DSM-5 applies to the claim. The Board notes that the DSM-5 eliminated the use of Global Assessment of Functioning (GAF) scores. In Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet Claims LEXIS 202, *9 (Feb. 23, 2018), the Court of Veterans Appeals found that “the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.” The Court explained that the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice,” and stated that “an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness.” Id. The Court explained that symptoms should be the primary focus when assigning a rating for a psychiatric disorder. Id. In accordance with Golden, the Board will not consider the Veteran’s GAF scores. The Board notes that the relief sought by the Veteran is being granted based on the severity of the Veteran’s symptomatology as shown by the evidence. The Veteran is service connected for PTSD. His disability is rated as 30 percent disabling from the effective date of the award, January 22, 2010, 50 percent disabling from March 31, 2011, and 70 percent disabling from September 28, 2014. Based on the following evidence, the Board concludes that the objective medical evidence, as well as the Veteran’s statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating for the entire appellate period. See 38 C.F.R. § 4.7. VA treatment records dated from January 2010 to March 2010 reported that the Veteran suffered sleep disturbances, worsening anger problems, antisocial behavior, avoidance of social situations, worsening hyperarousal to include flying into a rage when startled by loud noises, hypervigilance to include monitoring the outside of his home, avoidance of crowds, nightmares, weekly flashbacks, and daily intrusive thoughts. See January 2010 Mental Health Attending Note; February 2010 Mental Health Attending Note; March 2010 Mental Health Telephone Encounter Note. The Veteran also endorsed feeling a sense of doom at all times and an obsession with orderliness and cleanliness. Upon examination in April 2010, the Veteran was tearful, crying, agitated, and pacing when recounting the history of his marital and family relationships. He reported that he had worked for the postal service for almost forty years and planned on retiring in July 2010. He stated that he had been fired approximately 7 times and reprimanded 15-20 times; however, he reported that the union stepped in each time to prevent his termination. The examiner noted that the Veteran had significant problems with authority due to irritability. The Veteran also stated that he had been the aggressor in three fist fights since serving in Vietnam. Upon examination, he endorsed symptoms to include visual and audio flashbacks, poor memory with forgetfulness, weekly panic attacks, sleep disturbances, impulse control issues, daily nightmares, emotional numbing, avoidance of people and crowds, and lack of friendships. VA treatment records dated from July 2010 to September 2010 reported that the Veteran had increased anxiety related to life changes. See July 2010 Mental Health Telephone Encounter note; August 2010 Mental Health Telephone Encounter Note; September 2010 Mental Health Telephone Note. He endorsed sleep disturbances with daily nightmares and increased flashbacks. The Veteran stated that he had increased irritability and was feeling more “antsy.” In his September 2010 Notice of Disagreement, the Veteran reported increasing panic attacks and nightmares that occurred at least every other night if not every night. He stated that his fear and anxiety was “overwhelming.” In an October 2010 letter, the Veteran’s VA staff psychiatrist, Dr. J.B, reported that the Veteran’s symptoms had worsened with increased frequency of nightmares, increased anxiety, increased irritability, and increased difficulty sleeping. Dr. J.B. stated that the Veteran was being treated with escalating doses of medication and new medication for nightmares and sleep. The Veteran underwent another VA examination in March 2011. He endorsed the following symptoms: agitation, jumpiness, argumentativeness, night sweats, increased alcohol consumption, restlessness, nightmares on a nightly basis, hypervigilance, fatigue, and insomnia. The Veteran stated that he didn’t trust people and had no social life. He further reported that he was short-tempered and that his mood changed at the drop of a hat. He stated that each night he performed 3 to 4 checks of his home where he repeatedly checked the doors, locks, and searched for lurker’s outside. Upon examination, the examiner stated that the Veteran’s symptoms occurred every day and that they were considered severe. The Veteran had limited peer relationships and had distanced himself from friends. The examiner reported that the Veteran demonstrated problems with impaired impulse control, verbal aggression, agitation, and ritualistic cleanliness. The examiner noted that the Veteran’s concentration was impaired and that he was easily distracted. The Veteran underwent another VA examination in July 2014. He endorsed the following symptoms: depressed mood, insomnia, agitation, fatigue, loss of energy, feelings of guilt, and poor concentration. The examiner reported that the Veteran continued to engage in impulsive, verbally aggressive behavior (often with strangers), and that he was prone to profanity and threats. The examiner noted that this was similar to what appeared to have happened with the Veteran over the years working at for the postal service. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. Based on the above evidence, the Board concludes that the objective medical evidence and the Veteran’s statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating for the entire appellate period. See 38 C.F.R. § 4.7. In reaching this conclusion, the Board notes that the Veteran’s symptoms included obsessive rituals that interfered with routine activities, near-continuous depression and anxiety affecting the ability to function independently, appropriately and effectively, impaired impulse control, such as unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships The Board finds that while the Veteran’s symptoms were not always present, they were of sufficient persistence to result in occupational and social impairment with deficiencies in most areas throughout the entire appellate period. That said, the severity of the Veteran’s PTSD overall appears to have been essentially consistent for the entire appellate time period. For this reason, staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. Therefore, as explained above, the medical evidence supports the Board’s conclusion that a 70 percent rating is warranted for the entire appeal period. The Board adds that while a 70 percent disability is granted, the Veteran’s symptoms are not so severe as to cause total occupational and social impairment, warranting a 100 percent rating at any time during the period under review. Indeed, VA examiners who have assessed the Veteran through their own examinations, interviews and review of the Veteran’s medical history have concluded that at worst, the Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, and not total social and occupational impairment. Importantly, a January 14, 2018 VA Mental Health Note noted that the Veteran copes with his PTSD by working on his property, and he and his wife enjoy the company of neighbor kids who come over to see his chickens. While he explained at the time that he has no relationship with his daughter, he did indicate has a good relationship with his adult son. In a prior treatment record dated August 11, 2017, the Veteran indicated that he enjoyed a trip to Las Vegas with his family, and that he feels he has been able to contain his irritability. As total social impairment is not shown by the record, a 100 percent rating is not warranted. (Continued on Next Page) REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Service personnel records indicate that the Veteran was diagnosed with hypertension in September 1987. See September 1987 Dr. D.G. letter. The Veteran contends that his hypertension is due to in-service exposure to herbicide agents while serving in Vietnam. The Board also observes that the Veteran is service-connected for PTSD, diabetes and heart disease. On remand, a VA hypertension examination should be scheduled to address whether any relationship exists between the Veteran’s hypertension and service, and/or his service-connected disabilities. 2. Entitlement to service connection for peripheral edema of the lower extremities, to include as secondary to hypertension, is remanded. In April 2010, the Veteran underwent a VA examination for his peripheral edema of the lower extremities. Upon examination, the examiner opined that the Veteran’s lower extremity peripheral edema was more likely than not secondary to the Veteran’s hypertension medication. Because a decision on the remanded issue of entitlement to service connection for hypertension could significantly impact a decision on the issue of entitlement to service connection for peripheral edema of the lower extremities, the issues are inextricably intertwined. A remand of the claims is required. 3. Entitlement to service connection for kidney stones is remanded. Upon examination of the Veteran in April 2010, the examiner opined that the Veteran’s kidney stones were less likely than not secondary to his herbicide agent exposure and/or diabetes mellitus, type 2, or related to his in-service episode of elevated proteinuria, red blood counts, and white blood counts. However, the examiner provided no rational for these conclusions. As such, a new opinion is warranted. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion without any rationale against which to evaluate the probative value of the determination is inadequate). The matters are REMANDED for the following action: 1. Obtain all of the Veteran’s relevant ongoing VA treatment records not currently of record. 2. Schedule the Veteran for a VA hypertension examination. A copy of the claims file should be sent to, and reviewed by the VA examiner. Upon review of the file, interview and examination of the Veteran, the examiner should respond to each of the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had onset in, or is otherwise related to the Veteran’s period of active duty service, to include in-service exposure to herbicide agents? b) Notwithstanding the above, is it at least as likely as not that the Veteran’s hypertension was caused or aggravated beyond its natural progression by his PTSD, coronary artery disease, or diabetes mellitus, or any combination of the three? 3. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s kidney stones were incurred in, or are a result of his active duty service, to include in-service exposure to herbicide agents, and in-service treatment for elevated proteinuria, and elevated red and white blood counts. The examiner should also opine as to whether it is at least as likely as not the Veteran’s kidney disability is caused or aggravated beyond its natural progression by service-connected diabetes mellitus. If an in-person examination is deemed necessary by the reviewing physician to answer these questions, such should be scheduled. The opinions must be accompanied by a supporting explanation or rationale. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel