Citation Nr: 1807566 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (DM). 2. Entitlement to a rating in excess of 50 percent prior to February 11, 2013; and in excess of 70 percent beginning February 11, 2013, for posttraumatic stress disorder (PTSD). 3. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 6, 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to June 1971. The Veteran's decorations for his active service include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2011 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran's DM has been managed by daily injections of insulin and a restricted diet, and does not require regulation of activities. 2. For the entire period on appeal, the occupational and social impairment from the Veteran's PTSD has more nearly approximated deficiencies in most areas. 3. Prior to April 6, 2015, the Veteran met the schedular criteria for assignment of a TDIU and was unable to obtain and maintain substantially gainful employment due solely to the effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DM have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a rating of 70 percent, but not higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU have been met for the period prior to April 6, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an Increased Rating for Diabetes Mellitus The Veteran has asserted that his DM is worse than contemplated by the current assigned rating. At a March 2013 VA examination, the Veteran reported that he was diagnosed with DM 22 years prior. He reported that he managed his DM with restricted diet and insulin. The Veteran reported that he occasionally experienced episodes of low blood sugar, but it usually occurred when he missed a meal. He reported that he did a lot of walking for exercise and the examiner specifically noted that the Veteran did not have regulation of activities as part of his DM management. The Veteran's renal function was noted to be normal and microalbumin was negative. The Veteran was noted to see his DM care provider less than twice per month, he had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. The Veteran had not experienced any unintentional weight loss or progressive loss of strength attributable to his DM. The examiner noted that the Veteran's DM did not impact his ability to work as he had retired approximately 8 years prior and had not attempted to work since. At an April 2015 VA examination, it was noted that the Veteran's DM was managed with prescribed oral medication, insulin, and a restricted diet. The examiner noted that the Veteran did not require regulation of activities as part of his DM medical management. The Veteran did report that his legs felt weaker, but that he had not made any specific changes in his activities as a result of his DM. The Veteran was noted to see his DM care provider less than two times per month, and he had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the past 12 month period. The Veteran did not have any loss of strength of weight attributable to his DM. The examiner noted that the Veteran's DM did not impact his ability to work, but that he would require a reasonable accommodation from an employer to facilitate insulin administration. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities, to include his DM. A review of the treatment notes of record does not show that the Veteran has symptoms of his DM that are worse than those reported at his VA examinations. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his DM. In this regard, there is no objective medical evidence that the Veteran is medically prescribed to regulate his activities. The March 2013 and April 2015 VA examiners specifically found that the Veteran's DM did not limit his physical abilities. The Board acknowledges the Veteran's statements indicating that is entitled to a rating of 40 percent for his diabetes on the grounds that he meets the criteria. However, the Board notes that the regulation of activities is not merely a subjective complaint, but a medical conclusion of record, and one which has not been objectively shown by the evidence. Additionally, the Veteran has not required hospitalizations for either hypoglycemic reactions or episodes of ketoacidosis, and there is no evidence that he sees his diabetic care provider excessively for medical management of his DM. Therefore, the Board finds that a rating in excess of 20 percent for DM is not warranted. 38 C.F.R. §4.119, Diagnostic Code 7913. The Board acknowledges that the Veteran has diabetic peripheral neuropathy in all four extremities and diabetic retinopathy. However, the Veteran has already been assigned separate ratings for those disabilities and those ratings have not been appealed to the Board. Therefore, the Board will not consider the separate ratings assigned for complications of DM in this decision. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating for PTSD The Veteran asserts that the symptoms of his PTSD are worse than those contemplated by the currently assigned ratings. At an October 2010 VA examination, the Veteran reported that he continued to experience symptoms of his PTSD and that he sought regular treatment for such. It was noted that the Veteran was maintained on anti-depressant medication and seen for individual psychotherapy and medication management. The effectiveness of the Veteran's therapy was noted to be fair. The Veteran reported that he was still married, but that he did not maintain a close relationship with either his wife or four children. He reported that he was a loner, did not have friends, and only interacted socially with others once in a while. He reported that he enjoyed hunting, fishing, and watching sports. The Veteran reported that he had difficulty remaining asleep at night. The Veteran reported that he experienced panic attacks when he woke up at night, approximately three to four times per night. The Veteran reported that he experienced irritability and angry outbursts, and that he was hypervigilant. The Veteran reported that his symptoms had increased since attempting to visit the Vietnam War Memorial in June 2010. Upon mental status examination, the Veteran was noted to be dressed in hunting clothing, and his psychomotor activity was fatigued and tense. The Veteran's speech was mumbled, but his attitude toward the examiner was cooperative. The Veteran's affect was constricted and his mood was anxious and depressed. The Veteran's attention was intact and he was oriented to person, time, and place. His thought process was unremarkable, but his thought content contained ruminations. The Veteran did not have delusions or hallucinations, and was noted to understand the outcome of his behavior. There was no evidence of inappropriate behavior, obsessive or ritualistic behaviors, or problems with impulse control. There were no suicidal or homicidal ideations. The Veteran was noted to be able to maintain minimum personal hygiene and there was no problem with activities of daily living. The Veteran's memory was normal. The examiner noted that the Veteran experienced recurrent and intrusive recollections, that he avoided thoughts and feelings associated with his traumatic events, that he had a markedly diminished interest or participation in activities, and that he felt detached from others. The examiner confirmed the diagnosis of PTSD and noted that it was chronic and moderate in severity. The examiner noted that the Veteran's social support was quite limited and his prognosis was guarded. The examiner further noted that the Veteran's increased anxiety and depression would be obstacles to his efficiency and productivity in a work setting. At an August 2011 VA examination, the Veteran reported that he was still married and had four children, but that he was unable to love people as he was too afraid. He reported that did not have the motivation to work. It was noted that the Veteran continued to receive mental health treatment and medication management at the VA Medical Center and was maintained on anti-depressant medication. It was noted that the Veteran continued to experience intrusive and distressing recollections, that he was avoidant, that he had markedly diminished interest or participation in significant events, that he felt detached and estranged from others, and that he had a restricted range of affect. The Veteran reported difficulty falling and staying asleep and hypervigilance. Upon mental status examination, the Veteran had a depressed mood and was anxious. He was noted to experience panic attaches more than once a week. He has disturbances in motivation and mood, and he was unable to establish and maintain effective relationships. The examiner confirmed the diagnosis of PTSD and noted that the Veteran's occupational and social impairment was about the same as it had been at his last VA examination. At a February 2013 VA examination, the Veteran again reported that he remained married, but that he did not have a close relationship with his wife or children. He reported that he had one close friend whom he saw every three or four months. The Veteran's main leisure activity was fishing. It was noted that the Veteran was still seen at the VA Medical Center for mental health treatment and medication management, but that he had not connected with his new therapist following the retirement of his long-time treatment provider. The Veteran was noted to be maintained on anti-depressant medication. It was noted that the Veteran continued to experience recurrent and distressing recollections, that he was avoidant, that he had difficulty falling and staying asleep, that he was hypervigilant, and that he had an exaggerated startle response. It was noted that the Veteran continued to feel detached from others, that he had a restricted range of effect, and that he had markedly diminished interest or participation in significant activities. Upon mental status examination, the Veteran had a depressed mood and was anxious. He was noted to experience chronic sleep impairment and disturbances in motivation and mood. The Veteran had difficulty in adapting to stressful circumstances, including work like settings. The examiner confirmed the diagnosis of PTSD and noted that the Veteran's PTSD alone did not prevent him from working, but that the Veteran had lost confidence in his ability to perform in a work setting. At an April 2015 VA examination, the Veteran continued to report a preference for significant social isolation. He stated that he feared getting close to people who were "here today and gone tomorrow." He reported his one friend remained his only other social interaction outside of his family. On mental status examination, the VA examiner documented much the same symptoms as at the time of the previous VA mental health examination, with some increased irritability. The Veteran was oriented in all spheres; however, the examiner continued to report that he appeared anxious and depressed. In particular she documented that the Veteran became tearful during the examination. The examination was otherwise unremarkable with respect to the Veteran's tone, speech, thought processes, judgment and concentration. There was no evidence of hallucinations, delusions, or suicidal or homicidal ideations. A review of the record shows that the Veteran receives mental health treatment and medication management at the VA Medical Center. A review of the VA Medical Center treatment notes of record shows that the Veteran generally reports symptoms of sleep impairment, depression, anxiety, isolation, poor motivation, anhedonia, inability to maintain relationships, and fatigue. The Board finds that the Veteran is entitled to a 70 percent rating for PTSD for the entire period on appeal. During the entire period on appeal, the Veteran's PTSD more nearly approximated deficiencies in most areas. The Veteran's VA examinations documented a consistent and significant difficulty with establishing and maintaining social relationships, describing a history of social and occupational isolation with an inability to maintain relationships with either friends or family. He also reported consistent sleep impairment due to panic attacks, he was hypervigilant, had an increased startle response, and had difficulty interacting with people. The Veteran has been noted to have rather severe symptoms of depression and markedly diminished interest levels. The Veteran was observed to have significant disturbances in mood and motivation, and was regularly described as anxious. Therefore, the Board finds that the overall disability picture reflects that the Veteran's social and occupational impairment more nearly approximated deficiencies in most areas and a 70 percent rating for PTSD is warranted for the entire period on appeal. 38 C.F.R. §4.130, Diagnostic Code 9411 (2017). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the Veteran's own statements do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating, even though all of the specific symptoms listed for a 70 percent rating are not manifested. Consideration has been given to assigning a higher rating for PTSD. However, there is no indication from the record that the Veteran has had total occupational and social impairment due to his PTSD. In this regard, there is no indication from the record that the Veteran has experienced difficulty in maintaining his hygiene or that he exhibited obsessional or ritualistic activities that interfered with his daily activities. Further, there is no indication from the record that the Veteran has experienced significant impairment in speech, thought processes, judgment, or insight. The Veteran has not reported suicidal or homicidal ideations, and his impulse control has been noted to be within normal limits. The Veteran has reported that he still enjoyed fishing as a recreational pursuit and while the examiner noted that the Veteran has lost confidence in his ability to perform in an occupational setting, his PTSD did not prevent him from working. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. §4.130, Diagnostic Code 9411 (2017). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to TDIU The Veteran has reported that he is unable to work as a result of his service-connected disabilities. A review of the record shows that the Veteran met the schedular criteria for assignment of a TDIU for the period prior to April 6, 2015. A review of the record shows that the Veteran last worked full-time in 2005, at which time, he retired early as a result of the symptoms of his service-connected PTSD, DM, and associated complications. The Veteran worked for many years as an electrician and has a high school education. In a June 2013 statement, the Veteran reported an inability to adapt to stressful situations. He stated that he was no longer able to use ladders, due to numbness in his feet from his peripheral neuropathy. He expressed being tired all the time, which he had previously attributed in part to his PTSD medications and nightmares, as well as partially to his diabetes. He also reported a lack of any motivation to perform work, in addition to a preference for social isolation. He indicated that being around people induced feelings of anxiety and that he believed it was not advisable to perform work as an electrician while anxious or nervous. A review of the record confirms the Veteran's statements regarding his various symptoms and their impact on his ability to function in an occupational setting for the period prior to April 6, 2015. In light of the Veteran's occupational background and the functional limitations described, the Board finds that he was unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of his various service-connected disabilities for the period prior to April 6, 2015. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for DM is denied. Entitlement to a rating of 70 percent, but not higher, for PTSD for the entire period on appeal is granted. Entitlement to a TDIU for the period prior to April 6, 2015, is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs