Citation Nr: 18152955 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-38 964 DATE: November 27, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus type II is denied. A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus type II is manifested by a prescribed oral hypoglycemic agent and insulin with regulation of activities. 2. Throughout the appeal period, the Veteran’s PTSD has been manifested through occupational and social impairment, with deficiencies in most areas, including interpersonal relationships and periods of suicidal ideations. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.119, DC 7913. 2. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1967 to August 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II. In April 2013, the Veteran filed a claim with VA for an increased evaluation for his service-connected diabetes. He noted that he was put on insulin for treatment. A 10 percent rating is warranted for diabetes mellitus which is manageable by restricted diet only. A 20 percent rating is warranted for diabetes requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating requires the use of insulin, a 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 total rating of 100 percent is warranted when the disability requires more than one daily injection of insulin, a 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. Note 1 to Diagnostic Code 7913 provides that compensable complications from diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation; however, noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. The Veteran underwent a VA examination in May 2013. He is prescribed an oral hypoglycemic agent, and has insulin injections more than once per day; no regulation of activities; and less than two times per month visitations to diabetic care providers for episodes of ketoacidosis. He had no hospitalizations for ketoacidosis or hypoglycemia reactions, and no episodes of hypoglycemia requiring hospitalization. He did not have progressive unintentional weight loss or loss of strength due to diabetes mellitus, and did not have any complications due to diabetes mellitus. His more recent medical records indicate that he has increased his activity level. His physical activity includes frequent walking, and he has good activity. After review of the competent and probative evidence, the Board finds that a rating in excess of 20 percent for diabetes mellitus, type II, is not warranted. The Veteran uses oral hypoglycemic agent and requires insulin injections. However, his VA examination shows that he has not had regulation of activity. His private medical records also indicate that he has a good level of physical activity where he is able to walk frequently as well as kayak. The Board notes that the U.S. Court of Appeals for Veterans Claims has explained that the term "regulation of activities" means that a claimant must have a medical need to avoid not only strenuous occupational activity, but also strenuous recreational activity. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to show that occupational and recreational activities have been restricted. Id. at 364. As such, the evidence in the Veteran’s claim file weighs against regulation of activity. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 50 percent for PTSD. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). A 50 percent rating is warranted if the disability is productive of 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. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, the criteria for a 70 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202, at *9 (Vet. App. Feb. 23, 2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in August 2016 so it was pending before AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered. The Veteran underwent a VA examination in May 2013. He had occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behaviour, self-care and conversation. He lived alone with pets, and had friends worldwide but few close by. It was noted that the Veteran stated he spends most of his time in solitary activities. He generally got along with others. His symptoms included anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He had intrusive memories not on a regular basis, and had several nightmares per week. He had restricted affect, and difficulty concentrating. The Veteran has also submitted statements that document, to include one date in January 2015, his inability to maintain relationships, as well cognitive distortions, defiance, explosiveness, anti-social behaviors, and impulsivity. Acute episodes of suicidal ideation have been noted. Private records document anxiety, anger and rage, survivor guilty, inability to trust, exaggerated startle response, and nightmares and sleep impairment. He had normal speech, and depressive mood. He was oriented, had impaired memory, and had normal attention. At this time, the Veteran was highly isolated and had a limited social life. While he largely denied suicidal thoughts, he has had documented suicidal ideations, and was indifferent to dying. He has more recently had negative suicidal risk screens, and has some romantic relationships, but has had difficulty with these relationships. After review of the competent and probative evidence, the Board finds the Veteran’s PTSD most nearly approximates the criteria for a 70 percent rating. Regarding social impairment, the evidence shows that the Veteran has had little social support. While he acknowledges having friends worldwide as well as nearby, he remains isolated most of the time and rarely leaves his home. He does not have children. His symptoms also include anxiety, anger/rage, sleep impairment, and depressed mood. The Veteran has had romantic relationships, but has had difficulty with these as well. While the Veteran most recently has had negative suicide screens, he has had a history of suicidal ideations as well as feeling indifferent to dying. See Bankhead 29 Vet. App. at 20 (“[T]he 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 with deficiencies in most areas.”); see id. (affirming that suicidal ideation does not require suicidal intent, a plan, or prepatory behavior). As such, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood. The Board also finds that a higher rating, of 100 percent, is not warranted as the competent evidence does not reflect total social and occupational impairment. In this regard, he does not have persistent delusions or hallucinations, and he is not in persistent danger of harming himself or others. His suicidal ideations are intermittent. He has been found to be oriented, with a linear and logical thought process. Additionally, the 2013 VA examination report reflects that the Veteran held two part-time jobs selling cigars over the phone and serving as a council member for a city. As such, the Board finds that when viewed against other evidence of record, to include the VA treatment records, that the Veteran’s overall disability picture is most nearly approximated by the 70 percent evaluation, and not a 100 percent rating. Therefore, after looking at the totality of the Veteran’s PTSD disability picture, the Board finds that the preponderance of the evidence warrants a rating of 70 percent, but no higher. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel