Citation Nr: 18143058 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-12 305 DATE: October 17, 2018 ORDER A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A disability rating in excess of 20 percent for diabetes mellitus is denied. An effective date of December 30, 2004, and no earlier, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. An effective date of December 30, 2004, but no earlier, for the award of basic eligibility for DEA benefits is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD was manifested as occupational and social impairment with deficiencies in most areas, to include memory impairment and near-continuous depression, without more severe manifestations such as hallucinations, delusions, grossly inappropriate behavior, gross thought process or communications deficits, disorientation, and significant cognition and memory deficits that more nearly approximate total occupational and social impairment. 2. For the entire appeal period, the Veteran’s type II diabetes mellitus has required insulin and restricted diet but not a regulation of activities. 3. The most probative evidence reflects that the Veteran was employed in a protected environment and/or was unable to work due to his service-connected disabilities from December 30, 2004 to September 30, 2008. 4. The criteria for basic eligibility for DEA under Title 38, United States Code, Chapter 35, are met as of December 30, 2004. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2017). 3. The criteria for an effective date of December 30, 2004, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. §§ 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b), 3.400 (2017). 4. The criteria for assignment of an earlier effective date of December 30, 2004 but no earlier for the award of basic eligibility for DEA benefits have been met. 38 U.S.C. §§ 3501, 3510, 5113 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1967. Increased Rating - PTSD Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board may consider whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411 and has been assigned a 70 percent rating. See 38 C.F.R. § 4.130. 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126 (a). The Board finds that the evidence of record reflects both that the Veteran has had symptoms listed in the criteria for a 70 percent rating and that his symptoms have caused deficiencies in many areas. Vet Center records from 2005 indicate that the Veteran experienced at different times isolation, relationship problems, flat affect, anxiety, avoidance, guilt, irritability, anger outbursts, problems with stress management, nightmares, and poor sleep. An August 2005 VA examination report found the Veteran experienced anger, irritability, difficulty concentrating, and was easily distracted; however, he was fully oriented, he had mild memory impairment, and there was no impairment in thought process or communication. A November 2006 VA examination report showed weekly nightmares and panic attacks once or twice per month. A VA examination in February 2011 indicated infrequent angry outbursts, procrastination regarding bathing and grooming, and depression. In a June 2012 VA examination report, the Veteran described a depressed mood, anxiety, sleep impairment, anger, irritability, avoidance behaviors, hypervigilance and social isolation. In VA treatment records throughout the appeal period, to include treatment notes from the Veteran’s attendance in a PTSD support group, the Veteran consistently denied suicidal or homicidal ideation. In a February 2016 VA examination report, the Veteran was found to have occupational and social impairment with deficiencies in most areas. He reported nightmares and hypervigilance, and was found to be alert and oriented to all spheres. His thought processes were logical and coherent and free from evidence of psychosis. Subsequent VA mental health treatment notes indicate the Veteran experienced depression and anger, but no hallucinations, paranoia, memory loss or suicidal or homicidal ideation. The Veteran was consistently found to be cooperative and oriented to person and place. The 100 percent rating criteria provides example features of mental impairment such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Absolutely none of these symptoms have been reported by the Veteran or noted by clinicians and examiners since the start of the appeal period in December 2004. The VA examination reports and VA treatment records have consistently reflected that the Veteran has generally been oriented in all spheres with adequate thought process, communications, with only mild, occasional memory loss. The Veteran has consistently denied hallucinations, suicidal ideation, and homicidal ideation. There had never been any report or signs of persistent delusions, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, and own name. The Board notes that the record reveals the Veteran arguably displays some of the criteria for a 100 percent rating. To that end, the Veteran’s wife noted in multiple statements that the Veteran did not bathe for long periods of time, and the Veteran himself reported at the February 2011 VA examination that he did not bathe regularly. His wife also indicated that she worried that his enraged driving would result in harm to others. However, these each appear to be infrequent incidents, falling short of a “persistent” nature, and not resulting in the frequency, duration, and severity so as to render the Veteran totally socially and occupationally impaired. In addition, the VA examination report shows that the Veteran had been married for several decades to his wife. He reported a “pretty good” relationship with no significant problems or issues reported. He also had good relationships with his three adult children and spoke to them on a weekly basis. He had a few friends that he talked to weekly and saw on occasion. He was in contact with his sister and went out with his wife sometimes. As such, there is no evidence of total social impairment. Overall, the Board finds that the bulk of the evidence, consisting of multiple mental health treatment records and VA mental health examinations spanning over a decade, supports a finding that the Veteran’s symptoms, as a whole, more closely approximate the criteria for his current disability rating of 70 percent. Thus, the Board finds that at no time during the rating period on appeal has the Veteran’s PTSD warranted a rating in excess of 70 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Rating - Diabetes Mellitus The Veteran seeks an increased disability rating for his service-connected diabetes mellitus, which is rated at 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this Code, a 20 percent rating is warranted when the diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet. A 40 percent rating is warranted for diabetes that requires insulin, a restricted diet, and regulation of activities, and a 60 percent rating is afforded on evidence of diabetes that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Finally, a total (i.e., 100 percent) rating is awarded when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119 (2017). Relevant to the Veteran’s claim, the “regulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Due to the use of the word “and” in the criteria for a higher 40 percent rating under Diagnostic Code 7913, all criteria, including regulation of activities, must be met to establish entitlement to a 40 percent rating. Id. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1) (2017). Treatment notes from the appeal period consistently show that the Veteran required insulin and an oral medication for the treatment of his disability. At no time was a regulation of activities directed by a physician treating the Veteran. Turning to the criteria for a rating in excess of 20 percent for diabetes mellitus under Diagnostic Code 7913, the Board concludes after a review of the record that at no time throughout the course of the appeal has the Veteran’s disability met the criteria for a 40 percent disability rating. Specifically, while the evidence shows the Veteran has been prescribed an oral hypoglycemic agent and takes insulin daily, he has not been prescribed limited physical activity or advised to avoid strenuous occupational or recreational activities. Thus, the probative evidence of record shows that the Veteran has not been required to regulate his activities as defined by the rating criteria. Therefore, the criteria for an increased rating for diabetes mellitus under the criteria of Diagnostic Code 7913, are not met. As the criteria for the next higher, 40 percent, rating are not met and the criteria are cumulative, it follows that the criteria for an even higher rating (60 or 100 percent) likewise are not met. The Board acknowledges that the Veteran, in advancing this appeal, believes that his diabetes mellitus has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Pursuant to Diagnostic Code 7913, Note (1), complications of diabetes mellitus are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately. In this case, the Veteran has been diagnosed with lower extremity neurological complications due to his service-connected diabetes mellitus. However, these complications have been evaluated separately and therefore are not for consideration in the evaluation of his diabetes mellitus. 38 C.F.R. § 4.14. Based on the above, the Board finds that at no time during the rating period on appeal has the Veteran’s diabetes mellitus warranted a rating in excess of 20 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; Gilbert, supra. Earlier Effective Date – TDIU TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). VA regulations define marginal employment in two ways: (1) employment that produces income that does not exceed the poverty threshold for one person established by the U.S. Department of Commerce, Bureau of the Census, or (2) employment that produces income above the poverty threshold but is in a protected environment such as a family business or sheltered workshop. An February 2016 rating decision increased the Veteran’s PTSD disability rating to 70 percent, effective December 30, 2004, the date he first applied for service connection for the disability. Thus, the Veteran meets the minimum percentage requirements of 38 C.F.R. § 4.16 (a) as of that date. The Veteran has been granted a TDIU as of October 1, 2008, the date when he last worked. However, he asserts that his employment prior to that date was marginal. The question before the Board, therefore, is whether the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment as of December 30, 2004. In support of his assertion, the Veteran submitted a Vocational Employability Assessment in February 2015. The author of that assessment, R.D.G., reviewed the Veteran’s claims file and conducted a telephone interview. He noted the Veteran’s employment history; specifically, that he worked as a dump truck driver for a friend’s company though 2006, and after that business closed he took a job as a flagger until his psychiatric symptoms caused him to quit in September 2008. R.D.G. determined that the Veteran experienced occupational barriers as far back as 2003 due to his service-connected PTSD and diabetes mellitus. He described these barriers as a need to avoid others, road rage and anger outburst, limited ability to sustain effective relationships with others and a difficulty with motivation and general mood. These symptoms, which were documented from 2003, interfered with his ability to work. R.D.G. indicated that had the Veteran not worked for a friend who allowed absences and coverages when the Veteran was unable to work due to his symptoms, he would not have been able to maintain employment. As documented, once the flexibility of his job was removed and he began working as a flagger, he was unable to continue working due to the symptoms of his PTSD. In this case, the above evidence suggests that the Veteran’s employment, working for a friend, qualified as sheltered employment insofar as he was given a great deal of flexibility and freedom to perform his duties. He was removed from co-workers, and able to take leave when his symptoms were severe. He was unable to work at a subsequent job due to his symptoms. Therefore, the Board finds that the Veteran was either engaged in sheltered employment and thus was no more than marginally employed, or was unable to work due to his service-connected disabilities, for the entire period on appeal. Therefore, the Board finds that a TDIU is warranted effective December 30, 2004. The Board finds that the earlier effective date is appropriate because, while the Veteran did not officially cease working until 2008, the fact that he was working in a protected environment rendered his employment marginal up to 2006, and that period was followed by an unsuccessful attempt to work in spite of his PTSD symptoms. As the evidence shows that the Veteran’s PTSD prevented him from securing or following gainful employment as of the date he applied for service connection for PTSD, the Board has resolved reasonable doubt in the Veteran’s favor and finds that a TDIU is granted from December 30, 2004. Earlier Effective Date - DEA The Veteran was granted basic eligibility for DEA benefits effective October 1, 2008, based upon the grant of TDIU that was effective as of the same date. For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. (Continued on the next page)   The Veteran was initially granted a total disability rating from October 1, 2008. The RO has recognized that the disability was permanent as of the date of the total rating. In this decision, the Board has granted an effective date of December 30, 2004 for a total disability rating. Therefore, an effective date of December 30, 2004, is warranted for the grant of entitlement to DEA benefits pursuant to Chapter 35. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel