Citation Nr: 18111981 Decision Date: 06/19/18 Archive Date: 06/18/18 DOCKET NO. 15-08 025 DATE: June 19, 2018 ORDER Entitlement to an increased rating for type 2 diabetes, currently rated as 20 percent disabling, is denied. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED The issues of entitlement to service connection for diabetic neuropathy in the bilateral upper and lower extremities, diabetic retinopathy, sleep apnea, and ischemic heart disease are remanded. FINDINGS OF FACT 1. The 20 percent rating assigned for type 2 diabetes represents a full grant of benefits sought on appeal. 2. The evidence shows that the Veteran’s PTSD has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not occupational and social impairment with reduced reliability and productivity. 3. The evidence does not show that the Veteran’s service connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating for type 2 diabetes, currently rated as 20 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, DC 7913. 2. The criteria for an increased rating for PTSD, currently rated as 30 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. 3. The criteria for entitlement to a TDIU, at this time, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from April 1971 to April 1973, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA). Increased Rating Disability ratings are determined by applying the criteria in VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C. § 1155. Separate DCs identify the various disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a rating greater than 20 percent for type 2 diabetes is denied. In this case, a discussion of the criteria for a rating greater than 20 percent for service connected type 2 diabetes is not necessary because the 20 percent rating represents a full grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (finding that a claimant is generally presumed to be seeking the maximum benefit available, unless expressly indicated otherwise. Here, in a March 2015 correspondence, the Veteran expressly stated that he believes the 20 percent evaluation for diabetes mellitus is correct. Veteran’s Correspondence (Mar. 6, 2015). Therefore, the 20 percent rating assigned represents a full grant of benefits the Veteran in this case has requested. Id. The Veteran clarified that he initially appealed the rating, assigned in March 2011, and continued in June 2013 rating decisions, because he wanted the Agency of Original Jurisdiction (AOJ) to consider whether his claimed conditions of diabetic neuropathy, diabetic retinopathy, and “kidney damage” were proximately due to his service connected type 2 diabetes. The AOJ separately adjudicated those issues in February 2015 and May 2016 rating decisions as they were raised separately by the Veteran, and they are still in the appellate process awaiting the issuance of a Statement of the Case (SOC). Accordingly, those issues are not before the Board and the Board will not discuss them herein. 2. Entitlement to a rating greater than 30 percent for PTSD is denied. The Veteran was granted service connection for PTSD in a September 2010 rating decision. He was assigned an initial rating of 30 percent. After filing a claim for TDIU more than a year later, he underwent another examination in December 2011. A June 2013 rating decision continued the assigned rating. The Veteran appealed and contends he is entitled to a higher rating. The Board disagrees. PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under the General Formula, a 30 percent rating is warranted when 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when 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 complete 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 is warranted when 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; 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. These symptoms are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify the rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). “A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Id. “[Section] 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The Veteran received two Compensation and Pension (C&P) examinations during the appeal: in December 2011 and April 2016. Neither warrants a higher rating. During the December 2011 VA examination (VAX), the Veteran reported symptoms of reexperiencing, hyperarousal, hypervigilance, strategic avoidance of things that arouse recollections of the trauma, difficulties concentrating, sleep difficulties, and irritability. The Veteran did not endorse suicidal or homicidal ideation or psychotic symptoms such as persistent delusions or auditory or visual hallucinations. Upon examination, the examiner noted symptoms of depressed mood and chronic sleep impairment and diagnosed the Veteran with PTSD and adjustment disorder with depressed mood. The examiner stated it was possible to differentiate which symptoms were attributable to PTSD (service connected) and adjustment disorder with depressed mood (not service connected). He noted that symptoms of reexperiencing, hyperarousal, and strategic avoidance were symptoms unique to PTSD, and added that sleep difficulties, difficulty concentrating, and irritability were shared features of both conditions. Given the overlap, the Board resolves reasonable doubt in the Veteran’s favor and finds that such symptoms should be attributed to the service-connected condition. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). Ultimately, the examiner described the Veteran’s mental disorder as capable of producing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This supports a 30 percent rating. During the April 2016 VAX, the examiner noted symptoms of anxiety, chronic sleep impairment, and disturbances of motivation and mood attributable to PTSD. Cognitive functioning was within normal limits as the Veteran scored 30/30 on the cognitive screening. The mental examination revealed the Veteran was appropriately groomed and dressed; he was oriented to time, person, place, situation; his mood was euthymic with congruent affect; he was alert, cooperative, and tracked conversation well; he had concrete thought processes with appropriate thought content and responses; his speech was normal; and his motor movements were normal. He denied suicidal and homicidal ideation, and denied auditory and visual hallucinations. The examiner’s review of Jackson VA Medical Center (VAMC) records also revealed that the Veteran denied persistent irritability, suicidal ideation, homicidal ideation, auditory or visual hallucinations, anhedonia, and restlessness. The examiner noted that the Veteran continued to report PTSD symptoms, but did not report any significant depressive symptoms or psychosis. According to mental health treatment records at the Jackson VAMC, the Veteran’s symptoms improved and group therapy improved his coping. Assessing the Veteran’s mental disorder, the examiner described it as capable of producing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This, too, only supports a 30 percent rating. Similarly, a review of the Veteran’s mental health records from the Jackson VAMC indicates he does not meet the criteria for a rating greater than 30 percent. During a mental health examination in May 2016, the Veteran was alert, oriented, dressed and groomed appropriately, and pleasant and cooperative. His mood was stable, affect was appropriate, speech was clear and concise, judgment and insight were good, and he denied suicidal and homicidal ideation, as well as auditory and visual hallucinations. These findings are consistent with other mental health examinations conducted between the two VAXs. E.g., Jackson VAMC Records (Feb. 4, 2016; Oct. 15, 2015; Jun. 11, 2015; Mar. 6, 2015; Feb. 11, 2015; Nov. 7, 2014; Jul. 18, 2014; Feb. 28, 2014; Oct. 4, 2013; Apr. 26, 2013; Jan. 28, 2012; Aug. 31, 2012; Apr. 20, 2012); see also id. (Nov. 22, 2011; Aug. 30, 2011; Jun. 21, 2011; May 23, 2011). Additionally, VA medical records show that depression screenings were consistently negative. Id. (Apr. 15, 2016; Apr. 23, 2015; Mar. 26, 2014; Jun. 4, 2013; Nov. 26, 2012; Apr. 20, 2012; Oct. 20, 2011). The findings above do not suggest that the Veteran will not have problems with his PTSD. A 30 percent evaluation will, by definition, cause the Veteran many problems. The only question is the degree of the problem based on objective criteria. The medical records in this case provide evidence against the claim that the Board can not ignore. In sum, the 30 percent rating accurately reflects the severity of the Veteran’s mental disorder. The Board recognizes that the Veteran believes his condition warrants a higher rating and that he is competent to report symptoms, but he is not competent to render diagnoses or make findings about matters that require special education, training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s PTSD was provided by the VA clinicians who examined him during the current appeal and who rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his PTSD is evaluated. Accordingly, the Board accords more weight to the probative medical evidence of record and finds that a rating greater than 30 percent is not warranted. 3. Entitlement to a TDIU is denied. The Veteran seeks entitlement to a TDIU. To establish entitlement to TDIU, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The central inquiry in any TDIU determination is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. 38 C.F.R. § 3.340; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is itself recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the appellant can perform the physical and mental acts required by employment, not whether the appellant can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. The schedular requirements are met if there is only one service-connected disability and the disability is rated at 60 percent or more; or, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran does not meet the schedular criteria for a TDIU at this time. He is service connected for PTSD (30% disabling), type 2 diabetes (20%), pseudofolliculitis barbae (10%), and tinea versicolor (claimed as skin rashes) (0%). His combined rating is 50 percent. Therefore, the Veteran does not meet the schedular criteria for TDIU. Accordingly, the claim must be denied. The Board’s adjudication of this issue is proper. A TDIU claim is part and parcel of an increased rating claim when such claim is raised by the appellant or the record, but it is not a freestanding claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009) (citing Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009)). Whereas the issues remanded below are service connection claims, the issues addressed herein are increased rating clams; thus, the Veteran’s TDIU claim is part and parcel of the increased rating claims addressed above, all of which were decided. For these reasons, the Board’s adjudication of the matter is proper. If, at some point, the claims below are granted, or the service-connected conditions becomes worse over time, the Veteran may resubmit this claim. However, the Board does not wish to delay the full adjudication of the Veteran’s claims now before the Board at this time. REASONS FOR REMAND 1. The issues of entitlement to service connection for diabetic neuropathy in the bilateral upper and lower extremities, diabetic retinopathy, sleep apnea, and ischemic heart disease are remanded. On February 25, 2015, the AOJ denied, in relevant part, service connection claims for claimed conditions of diabetic neuropathy in the bilateral upper and lower extremities. On May 26, 2015, the AOJ continued the denial of service connection for diabetic neuropathy in the bilateral upper and lower extremities, and denied service connection for diabetic retinopathy, sleep apnea, and ischemic heart disease. The AOJ did, however, grant service connection for diabetic nephropathy (claimed as kidney damage) in the May 2015 rating decision. The Veteran, who is pro se, submitted a notice of disagreement (NOD) received on July 21, 2015, with the AOJ’s denial of service connection for diabetic neuropathy in the bilateral upper and lower extremities, diabetic retinopathy, sleep apnea, and ischemic heart disease. In October 2015, the AOJ informed the Veteran that it was not accepting his NOD because it was unsigned. This was error. The controlling regulation at the time did not require that an NOD be signed. The regulation only required that it be a “written communication from a claimant.” 38 C.F.R. § 20.201 (2014). The regulation was changed in 2015 to require that the NOD be signed, however, the regulation did not apply to the Veteran’s NOD. 79 Fed. Reg. 57660-98 (providing that changes to 38 C.F.R. § 20.201 were made effective March 24, 2015, and that the “final rule will apply only with respect to claims and appeals filed 180 days after the date this rule is published in the Federal Register as a final rule”). Simply stated, the Veteran’s July 2015 NOD was submitted before the signature requirement took effect; therefore, the Veteran’s July 2015 written correspondence constitutes a valid and timely filed NOD. See 38 C.F.R. § 20.201. Hence, the Veteran has properly initiated an appeal with respect to the AOJ’s denial of service connection for the claimed conditions of diabetic neuropathy in the bilateral upper and lower extremities, diabetic retinopathy, sleep apnea, and ischemic heart disease. Therefore, the AOJ must issue an SOC with respect to the claims as required by the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Send the Veteran a statement of the case that addresses the issues of service connection for diabetic neuropathy in the bilateral upper and lower extremities, diabetic retinopathy, sleep apnea, and ischemic heart disease. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue(s) should be returned to the Board for further appellate consideration. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel