Citation Nr: 18150171 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-07 915 DATE: November 14, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II (DM) is granted. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 50 percent for service-connected PTSD from June 25, 2012 to May 8, 2013 is granted. Entitlement to a rating in excess of 70 percent for service-connected PTSD from May 9, 2013 is denied. FINDINGS OF FACT 1. The Veteran’s DM was etiologically related to his active service. 2. From November 19, 2010 to June 24, 2012, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. 3. From June 25, 2012 to May 8, 2013, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. 4. Since May 9, 2013, the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection DM have been met. 38 U.S.C. §§ 1131 (2012); 38 C.F.R. § § 3.303 (2017). 2. From November 19, 2010 to June 24, 2012, the criteria for an initial disability rating of 70 percent for PTSD have been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2017). 3. From June 25, 2012 to May 8, 2013, the criteria for a disability rating of 70 percent for PTSD have been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2017). 4. From May 9, 2013, the criteria for a disability rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to December 1984. In June 2018, the Veteran, and his friend, testified at a Board video-hearing before the undersigned. A transcript is of record. Entitlement to service connection for DM The Veteran asserts entitlement to service connection for DM due to active service. See June 2018 Hearing Transcript. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017). With regard to a current disability, the Veteran has a current diagnosis of DM. See July 2018 Private Medical Opinion. Thus, the first element of service connection is met. See Shedden, supra. With regard to an in-service injury, the Veteran testified in June 2018 that he experienced symptoms of DM during his service. In July 2018 the Veteran’s doctor wrote that the Veteran began treatment for DM in February 1986 but had symptoms prior to that date. Specifically, the doctor found that the Veteran’ symptoms were triggered during service. Thus, insofar as the Veteran’s claim is based on an in-service occurrence, the second element of service connection is met. See id. With regard to nexus, the Board finds that probative evidence of records supports a link between the Veteran’s condition and service. In July 2018 the Veteran’s doctor opined that “given the date of his diagnosis of diabetes, it is likely that the trauma he experienced in Beirut could have triggered the autoimmune destruction of the insulin producing beta cells in his pancreas that led to the diagnosis of diabetes.” The Veteran’s medical records do not contain any negative nexus opinions regarding the DM. In light of the facts noted above and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the final element of service connection is met for the Veteran’s DM. Thus, an award of service connection is warranted for the Veteran’s claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating The Veteran contends that he is entitled to an increased rating for his service-connected PTSD. See June 2018 Hearing Transcript. In this case, the Veteran’s PTSD is assigned an initial rating of 30 percent from November 19, 2010 to June 24, 2012, a 50 percent disability evaluation from June 25, 2012 to May 8, 2013, and a 70 percent disability evaluation from May 9, 2013 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is warranted when the psychiatric disorder results in 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; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the psychiatric disorder results in 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. Entitlement to an initial rating in excess of 30 percent for PTSD The Board finds that the Veteran is entitled to a rating of 70 percent for his PTSD for this appellate period (November 19, 2010 to June 24, 2012). A November 2010 VA treatment record reflected that the Veteran endorsed symptoms such as chronic sleep impairment; depression; difficulty in adapting to stressful circumstances (including work or worklike setting); suicidal ideation; and impaired impulse control. In March 2011 the Veteran underwent a VA PTSD examination. The examiner found that the Veteran’s PTSD resulted in daily nightmares; avoidance; social isolation; sleep impairment; irritability; anger problems; and suicidal ideation. Socially, it was reported that the Veteran was in a 30-year, healthy relationship with his girlfriend. The Veteran also reported a few friends. A October 2011 VA treatment record reflected that the Veteran endorsed symptoms such as difficulty in adapting to stressful circumstances; impaired impulse control; and chronic sleep impairment. It was noted that the Veteran had gotten into a fight due to a traffic situation. The medical evidence also includes additional VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. Affording the Veteran the benefit of the doubt, the Board finds that the VA treatment records and VA examination demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent rating for the entire period. The Veteran has maintained a history of symptoms that predominantly includes suicidal ideation, irritability, anger, and social avoidance. The record also shows that the Veteran has difficulty in adapting to stressful situations and impaired impulse control. The Board finds that these symptoms and the social and occupational effects related thereto support a 70 percent evaluation for this period. See Vazquez-Claudio, 713 F.3d at 118. The Board finds, however, that the Veteran is not entitled to a higher rating during the appeal period, as total occupational and social impairment has not been noted. Notably, socially, the Veteran had a good relationship his longtime girlfriend and also had some friends. He was also fully oriented throughout the relevant time period. VA treatment providers and examiners have not indicated that the Veteran had memory loss of names of close relatives, his own occupation, or his own name or neglect of personal appearance and hygiene, or that he experienced symptoms of similar severity. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of total social impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Therefore, the Board finds that the Veteran’s PTSD warrants a 70 percent rating for this period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Entitlement to a rating in excess of 50 percent for service-connected PTSD from June 24, 2012 to May 8, 2013 The Board finds that the Veteran is entitled to a rating of 70 percent for his PTSD for this appellate period. In August 2012 correspondence the Veteran wrote that he was suffering from symptoms such sleep loss; constant anger; social isolation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation. The Veteran detailed experiencing thoughts that his “family would be better off with [him] not around” and weekly “meltdowns” at work. In August 2012, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran’s PTSD resulted in depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation of mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation. Socially, it was reported that the Veteran had problems with his significant other. The Veteran also stated that although he had friends he found the quality of the relationships to be unremarkable. The Veteran rarely engaged in activities or hobbies. Occupationally, it was reported that the Veteran maintained steady employment but endorsed deficiencies in occupational functioning. The examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The medical evidence also includes additional VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. Affording the Veteran the benefit of the doubt, the Board finds that the VA treatment records and VA examination demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent rating for the entire period. The Veteran has maintained a history of symptoms that predominantly includes suicidal ideation, panic attacks, depressed mood and anxiety, and social isolation. The record also shows that the Veteran has difficulty in adapting to stressful situations. The Board finds that these symptoms and the social and occupational effects related thereto support a 70 percent evaluation for this period. See Vazquez-Claudio, 713 F.3d at 118. In rendering this determination, the Board acknowledges that there is evidence of record that does not support an increased rating. In particular, the August 2012 VA examiner indicated that the Veteran’s symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Board finds the narratives contained in the treatment records, lay statements, and the VA examiner’s description of symptoms to be the most probative evidence of the Veteran’s psychological symptomatology. The Board finds, however, that the Veteran is not entitled to a higher rating during the appeal period, as total occupational and social impairment has not been noted. Notably, socially, the Veteran had a relationship his longtime girlfriend and also had some friends. He was also fully oriented throughout the relevant time period. VA treatment providers and examiners have not indicated that the Veteran had memory loss of names of close relatives, his own occupation, or his own name or neglect of personal appearance and hygiene, or symptoms of similar severity. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of total social impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Therefore, the Board finds that the Veteran’s PTSD warrants a 70 percent rating for this period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Entitlement to a rating in excess of 70 percent for service-connected PTSD from May 9, 2013 The Board finds that the Veteran is not entitled to a rating in excess of 70 percent for his PTSD for this appellate period. In November 2013, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran’s PTSD resulted in depressed mood; anxiety; chronic sleep impairment; disturbances of motivation of mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and impaired impulse control. Socially, it was reported that the Veteran problems with his significant other. The Veteran also stated that although he had friends, he only had one close friend. The Veteran was part of a motorcycle group. Occupationally, it was reported that the Veteran maintained steady employment though his own business and had hired two employees. The Veteran detailed difficulties with his employees. The examiner found that the Veteran’s PTSD resulted in occupational and social with deficiencies in most areas. In his February 2015 VA Form 9, the Veteran detailed his deteriorating relationship with his wife and his “non-existent” relationship with his daughter. The Veteran endorsed symptoms such as chronic depression and chronic sleep impairment. The Veteran also noted that he was winding down his business due to his PTSD. A May 2018 lay statement from “C. M.” (initials used to protect privacy), reflected that the Veteran’s behavior and attitude had worsened over the previous three years. C. M. wrote that the Veteran had difficulties controlling his temperament and anger. C. M. also attended the Veteran’s June 2018 hearing, where he detailed that the Veteran’s condition had deteriorated. A May 2018 lay statement from “S. F.” (initials used to protect privacy), reflected that the Veteran’s frustration tolerance and emotional regulation had worsened over the previous three years. S. F. wrote that the Veteran was withdrawing socially, suffering from panic attacks, and had suicidal ideations. A May 2018 lay statement from “L. B.” (initials used to protect privacy) reflected that the Veteran’s mood had “darkened.” S. F. wrote that the Veteran’s wife and stepdaughter had left him and that he had to sell his business due to his PTSD. A May 2018 lay statement from the Veteran’s friend, “D. F.” (initials used to protect privacy), reflected that due to the time D. F. spent with the Veteran due to their common interest in activities, D. F. had witness periods of isolation, explosive behavior, and family issues. D. F. also detailed that the Veteran had confided in him that he closed his business due to the stress of dealing with others. A May 2018 VA treatment record reflected that the Veteran had passive suicidal ideation but that he had “his daughter to live for.” During his June 2018 hearing the Veteran detailed the difficulties his PTSD caused him, which ultimately lead to him closing his business. He also explained that he had lost his wife, daughter, and house. The medical evidence also includes additional VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination report and lay statements. The medical evidence also includes VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. The Board finds that the Veteran is not entitled to a higher rating during this appeal period, as total occupational and social impairment has not been noted. Notably, socially, while the Veteran does not have relationships with his wife or daughter, he does have friends. He was also fully oriented throughout the relevant time period. VA treatment providers and examiners have not indicated that the Veteran had memory loss of names of close relatives, his own occupation, or his own name or neglect of personal appearance and hygiene, or symptoms of similar severity. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of total social impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Therefore, the Board finds that the Veteran’s PTSD warrants a 70 percent rating for this period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 70 percent for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel