Citation Nr: 18144426 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-20 249 DATE: October 24, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. Entitlement to an evaluation of 50 percent, but no more, for posttraumatic stress disorder (PTSD) is granted for the entire period of the appeal, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from August 7, 2015. FINDINGS OF FACT 1. For the entire period of the appeal, management of the Veteran’s service-connected diabetes mellitus type II required oral hypoglycemic agent, regular insulin, and a restricted diet; however, it did not also require regulation of activities. 2. For the entire period of the appeal, the Veteran’s PTSD is shown to be productive of occupational and social impairment with reduced reliability and productivity, but without significant impairment in most areas. 3. For the entire period of the appeal, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913. 2. The criteria for an evaluation of 50 percent, but no more, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.17, 4.130, Diagnostic Code 9411. 3. From August 7, 2015, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. He testified at a June 2018 videoconference hearing before the undersigned Veterans Law Judge; he waived Regional Office review of new evidence during that hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. The Veteran is in receipt of a 20 percent evaluation for diabetes mellitus, type II, effective October 12, 2012. He submitted a claim seeking an increased rating for the condition on December 31, 2016. The 20 percent evaluation was awarded pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this code section, diabetes mellitus type II requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. 38 C.F.R. § 4.119. Diabetes mellitus type II requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Id. Diabetes mellitus type II 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, is rated 60 percent disabling. Id. Diabetes mellitus type II 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, is rated 100 percent disabling. Id. The rating schedule in Note 1 also instructs to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. Pursuant to Note 1 of the code section, the Veteran is currently assigned separate ratings for peripheral neuropathy of the bilateral lower extremities as well as chronic kidney disease; these matters are not currently on appeal. There is no evidence of retinopathy, cardiovascular disease, peripheral vascular disease, gastroparesis, or skin changes directly attributable to the Veteran’s diabetes mellitus type II. At the outset, the Board acknowledges that the Veteran’s diabetes mellitus type II has required the use of insulin and a restricted diet for control, thus warranting the currently assigned 20 percent rating. What is still in question, however, is whether the Veteran’s diabetes mellitus required the regulation of activities, as would be necessary to warrant an increase of the disability evaluation to 40 percent. During the appeal period, the Veteran was afforded VA examinations in January 2017 and in June 2017 to evaluate the severity of his diabetes mellitus type II, and neither examiner acknowledged that the condition mandated a regulation of the Veteran’s activities. Specifically, both examiners found no evidence that the diabetes mellitus type II had any impact on the Veteran’s ability to work. They both also noted that the Veteran required less than two visits per months to a diabetic care facility for episodes of ketoacidosis and/or hypoglycemia. Ultimately, the VA examinations reflect that the diabetes mellitus type II is managed with restricted diet and the use of both insulin and a prescribed oral hypoglycemic agent. VA outpatient records dating from a year prior to the Veteran’s claim for increased rating do not indicate that the Veteran has had to regulate his activities in any specified manner that was attributable to his diabetes mellitus type II. Indeed, his VA medical records detail his regular attendance of weight and diet management courses through his local VA medical center and show that he has been attempting to keep to a regimen of physical activity while at home. While there is clearly an indication that the Veteran’s physical abilities are somewhat restricted, this has been fully attributed to other medical conditions, both service-connected and otherwise. The Veteran has submitted a note from a Dr. M.S. dated in July 2018 in which it was stated that the Veteran had severe diabetes and was advised not to work due to that diabetes. No rationale or explanation for this characterization of the severity of the diabetes was provided, however. The Veteran also submitted a document entitled “Pharmacy Pact Clinic” dated on July 10, 2018, which provides guidelines for his use of insulin and his goal for HbA1c levels. This document does not suggest that the Veteran is required to regulate his activities. During the June 2018 hearing, the Veteran responded yes to the query as to whether he was on restricted activity, but did not elaborate. He did go on to say, however, that his diabetes progressed around 2011 when he retired because he “wasn’t really active then”, suggesting that recently he has become more active (which accords with the available VA treatment records). In summation, the Veteran has not submitted any evidence or argument which convincingly shows that his diabetes mellitus type II requires a regulation of his activities. Although he asserted as much during the hearing, he did not offer any illustration of how his activities are regulated and how any regulation of activities is attributable to his diabetes mellitus type II. Moreover, although he submitted a doctor’s note from his treating physician Dr. M.S. in which the diabetes was characterized as “severe,” Dr. M.S. also did not offer any explanation or illustration to validate this characterization. Ultimately, the objective medical evidence includes the two VA examinations as well as the available VA medical records, which indicate that the diabetes mellitus type II does not require any regulation of activity. Indeed, as stated, the Veteran is actively pursuing more physical activity through his local VA medical center in order to help manage his weight. Therefore, the preponderance of the evidence is against a finding that the diabetes mellitus type II requires a regulation of activities and, as such, the Board concludes that a rating in excess of 20 percent for diabetes mellitus type II is not warranted. Consequently, the benefit-of-the-doubt doctrine does not apply, and the rating claim must be denied on a schedular basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 30 percent for PTSD. Service connection is in effect for PTSD with a disability rating of 30 percent effective November 17, 2009. The Veteran submitted a claim for an increased rating of his PTSD on August 7, 2015. The 30 percent rating was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a rating of 30 percent is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent schedular evaluation contemplates 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. With regard to evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Furthermore, ratings are assigned according to the manifestation of particular symptoms. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment; however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). During the pendency of the appeal, the Veteran has been afforded VA examinations in August 2015 and more recently in June 2017. On both examinations the PTSD has been evaluated as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Specifically, on the August 2015 examination he reported experiencing symptoms of increased startle response, intermittent nightmares, and anxiety in response to trauma reminders. However, he also endorsed maintaining a relationship with his wife of 36 years and keeping himself occupied with a variety of activities, to include veterans’ support groups and activism. It was the August 2015 examiner’s opinion that the Veteran’s symptomatology had not altered significantly since he was last evaluated for the condition in 2010. On the June 2017 examination, the Veteran again endorsed maintaining a relationship with his wife and participating in veterans’ support and outreach activities. He also detailed that he regularly attended therapy sessions through his local VA medical center and his local veterans center, and briefly attended a private psychological clinic. Symptoms were reported as depression, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing nad maintaining effective work and social relationships. While the examiner acknowledged that the Veteran experienced minor depression, they still found that his affect was within the full range and appropriate. It was the examiner’s impression that any limits on the Veteran’s employability would accrue more to his serious and multiple medical issues rather than his diabetes mellitus type II. Private counseling records dating from July 2012 show that the Veteran attended regular counseling sessions up through January 2016 to address his psychological and mental health difficulties. A review of those records indicates that the Veteran received advice on how to cope with his symptoms of sleep disturbance and hypervigilance as well as strategies to avoid triggering memories of his military experiences and help him with social interactions. The Board notes that on a July 2012 intake evaluation the Veteran reported that he had suicidal thoughts when he separated from his wife briefly in 2010; however, he did not act on those thoughts and did not endorse suicidal ideation at any subsequent point in his life. In an August 2016 psychological evaluation by a Dr. S.E., the Veteran endorsed experiencing symptoms of recurring nightmares of his service in Vietnam, depression, social isolation, anger and frustration, hypervigilance, avoidance of loud noises, and sleep disturbance. After detailing multiple sessions meeting with the Veteran, Dr. S.E.’s impression was that he had chronic and severe PTSD that caused him clinically significant distress and had a very negative impact on his interpersonal relationships. VA treatment records show that the Veteran attends regular therapy and counseling sessions at his local VA medical center. He continually reports participating in a variety of activities with veterans’ groups. He has been prescribed medication to treat his symptoms of depression. During the June 2018 hearing, the Veteran reported attending therapy and counseling to treat his PTSD twice a week, once with a private facility and once through VA. He endorsed experiencing symptoms of sleep disturbances, depression, anxiety, hypervigilance, and anger issues. He also acknowledged having some disciplinary action taken against him when he worked due to anger outbursts with fellow employees. In a July 2018 correspondence, a J.H., who identified herself as a social worker who had evaluated the Veteran in 2016 and more recently provided him with individual therapy, detailed that the Veteran presented with symptoms of nightmares, anger issues, depression, and hypervigilance. It was her opinion that the PTSD precluded the Veteran from maintaining gainful employment. Upon consideration of the record, the Board finds that a disability rating of 50 percent is warranted for the entire period of the appeal. At all points during the pendency of the appeal, the Veteran reported experiencing insomnia and difficulty establishing and maintaining social relationships as well as general depression, hypervigilance and anger issues. However, he also acknowledged having a continuing relationship with his wife. Furthermore, he reported engaging in extensive outreach work with veterans’ groups and meeting regularly with other veterans for counseling sessions. The Board thus finds that the Veteran has demonstrated the flattened affect, depression, and difficulty in establishing and maintaining effective work and social relationships which characterize the 50 percent evaluation for the entire period of the appeal. With that being said, the Board does not find that the Veteran has exhibited that degree of impairment necessary to warrant a 70 percent evaluation at any time during the pendency of the appeal. He has never endorsed experiencing auditory or visual hallucinations. Although he did report suicidal ideation in 2010 when he briefly separated from his wife, he did not act on those thoughts, and there is no indication that they have recurred since then. Furthermore, although he reported withdrawing from social interactions, he has consistently maintained a relationship with his wife and participates in a variety of activities with fellow veterans. Accordingly, the Board finds that a 70 percent rating is not warranted for PTSD at any time during the pendency of the appeal. 38 C.F.R. § 4.7. Entitlement to TDIU As the issue of entitlement to TDIU is part and parcel of any increased rating claim, the Board will consider the applicability of TDIU back to the date that the Veteran filed his claim of entitlement to an increased rating for PTSD, i.e. August 7, 2015. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As the Board is granting an increased rating of 50 percent for PTSD from the date of that claim, the Veteran now meets the schedular requirements for TDIU for the entire period of the appeal. That being said, the Board must still evaluate whether the service-connected disabilities precluded the Veteran from securing and maintaining substantially gainful employment during the appeal period. After consideration of the record, and in acknowledgment of the benefit of the doubt doctrine, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities together prevented him from obtaining and securing substantially gainful employment from August 7, 2015. The Veteran submitted his formal claim of entitlement to TDIU in May 2017 on VA Form 21-8940, and indicated that he last worked for a soda company, retiring in July 2011 after 43 years as a truck driver. The RO attempted to secure additional information regarding the Veteran’s employment and the circumstances of his departure in May 2017, but was unable to obtain any such information from the soda company for which the Veteran worked. The RO has also secured two opinions from VA examiners regarding the functional impact of the Veteran’s service-connected disabilities on his ability to work. In an May 2017 opinion, a VA examiner commented that the chronic kidney disease and diabetes did not have any impact on physical or sedentary activities, and further noted that the Veteran did not have any recurring hypoglycemic episodes and was not on dialysis. Thereafter, in an June 2017 opinion, a different VA examiner stated that the extent of the Veteran’s depression did not limit his emotional affect and further detailed that the psychiatric disorder was mild and would not prevent him from being employer. That examiner also stated, however, that the Veteran did have numerous service-connected medical conditions that together would possibly make him unemployable. On his own behalf, the Veteran has submitted a July 2017 statement from a C.W., an individual who identified himself as a counselor that had been working with the Veteran at his local veterans’ center since 2012. C.W. noted that the Veteran reported experiencing distressing memories of traumatic events from service and required ongoing counseling and psychiatric care. It was C.W.’s opinion that the Veteran’s PTSD significantly interfered with his ability to function at home and in the community. The Board also refers to the June 2018 note from Dr. M.S. and the July 2018 correspondence from J.H., both referenced above, in which those individuals opined that the diabetes mellitus type II and the PTSD, respectively, precluded the Veteran from maintaining employment. During the June 2018 hearing, the Veteran stated that he retired early when he felt that he could not carry out the physical duties his job required. He also remarked that disciplinary action was taken against him when he worked due to him having anger outbursts towards his fellow employees. This testimony is credible, and there is no evidence in the record which directly refutes it. The Board acknowledges that no VA examiner has ever found that any of the Veteran’s service-connected disabilities, considered separately, preclude him from securing and maintaining substantially gainful employment. However, the July 2017 examiner speculated that the Veteran’s physical disabilities may have prevented him from securing and maintaining gainful employment. Taken together with the private opinions of record, the Board finds that the evidence is at least in equipoise as to the question of whether the Veteran’s service-connected disabilities precluded him from securing and maintaining substantially gainful employment during the appeal period. As the Veteran met the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) from August 7, 2015, the Board grants TDIU from that date. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel