Citation Nr: 21001116 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-37 776 DATE: January 7, 2021 ORDER Entitlement to a higher rating for nephropathy with hypertension, currently evaluated as 60 percent disabling is denied. Entitlement to an evaluation in excess of 30 percent disabling for panic disorder prior to September 29, 2020, is denied. Entitlement to an evaluation in excess of 50 percent disabling for panic disorder from September 30, 2020, is denied. Entitlement to an evaluation in excess of 20 percent disabling for diabetes mellitus type II is denied. Entitlement to a TDIU due to the diabetic process alone since December 6, 2018 is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) since December 6, 2018, is granted. FINDINGS OF FACT 1. The Veteran’s nephropathy with hypertension manifested without persistent edema or albuminuria and no generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 2. Prior to September 29, 2020, the impairment associated with the Veteran’s panic disorder was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. Since September 30, 2020, the impairment associated with the Veteran’s panic disorder was productive of reduced reliability and productivity due to symptoms such as panic attacks more than once a week. 4. The Veteran’s diabetes mellitus required a treatment regimen consisting of insulin therapy, prescribed oral hypoglycemic agents and a restricted diet. 5. Throughout the appeal, the Veteran’s diabetes mellitus did not require regulation of activities and did not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospital visits per year or twice a month visits to a diabetic care provider. 6. The Veteran is precluded from obtaining and sustaining gainful employment due to his service-connected disability of diabetes mellitus, type II alone, to include diabetic neuropathy of the upper and lower extremities and diabetic nephropathy with hypertension since December 6, 2018. 7. Effective December 6, 2018, the Veteran has service-connected disabilities independently rated as 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 60 percent disabling for nephropathy with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7541. 2. The criteria for entitlement to a rating higher than 30 percent disabling for panic disorder prior to September 29, 2020 has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.130, Diagnostic Code 9412. 3. The criteria for entitlement to a rating higher than 50 percent disabling for panic disorder from September 30, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.130, Diagnostic Code 9412. 4. The criteria for entitlement to a rating higher than 20 percent disabling for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.15, 4.16, 4.25, 4.79, Diagnostic Codes 7101, 7541, 7913, 8514, 8520. 5. The criteria for entitlement to a TDIU due to the diabetic process alone have been met since December 6, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.3, 4.16, 4.18, 4.19, 4.25. 6. The criteria for special monthly compensation at the housebound rate, effective December 6, 2018, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to June 1971, including service in the Republic of Vietnam. The Veteran testified at a Board hearing before the undersigned VLJ in January 2020. The matters have returned to the Board following remand in September 2020 for further development. While on remand, the RO increased the evaluation for panic disorder to 50 percent disabling from September 30, 2020, the date of the VA examination. Because this is not considered a full grant of the benefit sought on appeal, this issue is still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a higher rating for nephropathy with hypertension currently evaluated as 60 percent disabling. The Veteran’s nephropathy with hypertension is currently rated at 60 percent disabling under Diagnostic Code 7541, which follows the rating for renal dysfunction under 38 C.F.R. § 4.115a and 38 C.F.R. § 4.115b. The Veteran states that his condition is more severe than currently rated. See January 2020 Board Transcript. Under these codes, renal dysfunction with albumin and casts with a history of acute nephritis warrants a noncompensable evaluation. Renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells warrants a 30 percent evaluation. Renal dysfunction with constant albuminuria with some edema or definite decrease in kidney function warrants a 60 perc-ent evaluation. Renal dysfunction with persistent edema and albuminuria with BUN (blood-urea-nitrogen) of 40 to 80 milligrams percent; or, creatinine 4 to 8 milligrams percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation or exertion, warrants an 80 percent evaluation. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN (blood-urea-nitrogen) more than 80 milligrams percent; or, creatinine more than 8 milligrams percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent evaluation. Thus, in order to warrant a higher rating, the evidence must show: persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Turning to the medical evidence, in an August 2016 VA examination, the Veteran did not show symptoms due to renal dysfunction with recurring proteinuria (albuminuria). See August 2016 Kidney Conditions (Nephrology) VA examination. The Veteran did not have edema, anorexia, weight loss, generalized poor health, lethargy, recurring proteinuria (albuminuria), weakness, limitation of exertion, or markedly decreased function of other organ systems. The examiner opined that the Veteran’s renal disability did not impact his ability to work. Diagnostic and clinical tests reflected BUN of 18 and creatine of 1.06. In the October 2020 VA examination, the Veteran was not found to have edema, anorexia, weight loss, generalized poor health, lethargy, recurring proteinuria (albuminuria), weakness, limitation of exertion, or markedly decreased function of other organ systems. See October 2020 Kidney Conditions (Nephrology) VA Examination. As above, the examiner opined that the Veteran’s renal disability did not impact his ability to work. Diagnostic and clinical tests reflected BUN of 36 and creatine of 1.9. During the period on appeal, there are no test results which reveal BUN levels between 40 and 80 mg%. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. As the examiners had the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. 2. Entitlement to a higher rating for panic disorder currently evaluated as 30 percent disabling prior to September 29, 2020 and 50 percent disabling from September 30, 2020. The Veteran states that he should have higher ratings for his panic disorder disability as it is worse than contemplated by the currently assigned ratings. Specifically, the Veteran testified that his panic attacks have increased to 4-8 times per month. See January 2020 Board Transcript. The Veteran’s panic disorder is rated 30 percent disabling prior to September 29, 2020 and 50 percent disabling from September 30, 2020 under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. 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 such as, 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. Id. 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 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). a. Entitlement to a rating higher than 30 percent disabling prior to September 29, 2020. At a September 2011 VA examination for the Veteran’s panic disorder without agoraphobia, the Veteran arrived appropriately groomed in casual and weather appropriate attire. His mood was congruent, full in range and well-related. At that time, the Veteran reported that he experienced irritation. He denied hallucinations and delusions, and there was no evidence of psychotic process. The Veteran also denied suicidal or homicidal ideation or intent. There were no cognitive defects, memory deficits, and the Veteran had adequate insight and unimpaired judgement. The Veteran reported experiencing recurrent unexpected panic attacks with concern of having additional attacks. The Veteran’s attacks were described as well controlled and the examination remarked that the Veteran reported to be stable. The examiner opined that the Veteran had minimal occupational impairment due to panic disorder. An October 2011 progress note described the Veteran as cooperative and pleasant with good hygiene and grooming. His affect was normal in range and intensity, and he was not in distress. The Veteran’s mood was good, speech was normal, and this thought process was linear, and goal directed. The Veteran did not report delusions, or suicidal or homicidal ideation. His cognitive functions were good, as were his insight and judgement. The Veteran was afforded another VA examination in August 2016. He arrived on time, well-groomed, had good hygiene, and was alert and attentive. He was oriented to person, place, time, and situation. The Veteran indicated that he was married for approximately 35 years and that he had two children with who he remained in contact with a relationship that he described as “fine”. The Veteran’s wife and son were his primary social supports. He reported that he engaged in activities around the house such as gardening, cooking, cleaning, and socializing with neighbors. He denied any issues in social or public settings. The Veteran’s thought process was organized, linear, and direct. He denied suicidal or homicidal ideations intent or plan. The Veteran denied longterm memory problems, but the clinician noted that he may experience mild attention and concentration problems as well as mild abstraction difficulties. The Veteran’s judgement was good as well as his insight. The examiner opined that the Veteran’s panic disorder was most productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. When taking into account all of the symptomatology of record, social, and occupational impairment was to a lesser degree than reduced reliability and productivity. See Bankhead v. Shulkin, No. 15-2404 (Vet. App. May 9, 2017) (noting that the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level); Vazquez-Claudio, 713 F.3d at 117 -18. In that regard, as noted above, although the Veteran's symptoms are the “primary consideration” in assigning an evaluation under § 4.130, the determination of a particular evaluation requires a factual conclusion as to the level of occupational and social impairment. In this case, the preponderance of the evidence is against a rating in excess of 30 percent for panic disorder prior to September 29, 2020, and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. b. Entitlement to a rating higher than 50 percent from September 30, 2020. While on remand, the RO increased the rating for panic disorder to 50 percent from September 30, 2020 under Diagnostic Code 9412. The Veteran was afforded a VA examination on September 30, 2020, during which he was grieving the death of his father and brother. The Veteran indicated that he resided with his wife and son. He reported having less friends over time because many of his friends “went the wrong way” but explained that he talked with them on the phone infrequently. He also discussed relationship with a longtime friend that visits the Veteran on occasion. The Veteran reported panic attacks that occurred sometimes daily and expressed experiences excessive worrying. The Veteran’s symptoms were described as anxiety, panic attacks more than once a week, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran did not report suicidal or homicidal ideation. His insight was fair and judgement intact. The Veteran’s panic disorder in conjunction with his cognitive impairment would make it challenging for him to complete even sedentary, rote, simple tasks, as he would require significant monitoring to complete tasks correctly in a timely manner. The Veteran did not show symptoms of occupational and social impairment in most areas, including family relations, judgement, thinking, due to symptoms such as suicidal ideation, speech intermittently illogical, near-continuous panic or depression affecting his ability to function independently. Therefore, the Board finds that the Veteran does not meet the criteria for a rating in excess of 50 percent from September 30, 2020. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine does not apply, and the claim must be denied. 3. Entitlement to a higher rating for diabetes mellitus type II currently evaluated as 20 percent disabling. The Veteran’s service-connected diabetes mellitus type II is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is assigned under Diagnostic Code 7913 for diabetes mellitus manageable by requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring 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 maximum 100 percent rating is assigned for diabetes mellitus requiring 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. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to Diagnostic Code 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Notes (1), (2). “Regulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). During the October 2020 VA diabetes mellitus examination, the examiner indicated the Veteran is prescribed insulin more than once a day and a restricted diet to treat his diabetes. The examiner found that the Veteran does not require regulation of activities as part of medical management of diabetes mellitus. The examiner indicated that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. Also, the examiner stated that the Veteran has not had any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. A 40 percent rating requires that diabetes mellitus be managed by insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913. Upon review of the record, the Board finds that the Veteran's diabetes mellitus, type II, does not require regulation of activities as part of medical management. Thus, a 40 percent rating of diabetes mellitus, type II, is not warranted. The Board further finds that the higher ratings of 60 and 100 percent are not appropriate in this case as the record does not reflect that the Veteran required insulin, hospitalizations after episodes of ketoacidosis or hypoglycemic reactions, weekly visits to a diabetic care provider, or progressive loss of weight and strength. Thus, the claim is denied. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine does not apply, and the claim must be denied. 4. Entitlement to a TDIU due to the diabetic process alone. The Veteran’s TDIU application indicates his service-connected panic disorder caused him to be unemployable. See February 2013 application. The Veteran was granted entitlement to TDIU in the September 2020 Board Decision. The record reflects that the Veteran was awarded Social Security Administration (SSA) disability benefits due to rotator cuff tear and prostate cancer. SSA records also reference disabilities including panic disorder, prostate cancer, and diabetic process disorders. See November 2009 SSA Records. Subsequently, the Veteran explained that his DM disability impacts his energy level, as well as his heart and renal functions. See January 2020 Hearing Transcript. He also explains that his symptoms of diabetic nephropathy impact his ability to function. Id.; See also December 2013 Statement from M.S. Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran meets the schedular requirements for TDIU throughout the appeal periods and has a combined disability rating of 100 percent. While the VA examiner opined in August 2016 that the Veteran’s DM disability did not impact his ability to work, he also noted that the Veteran’s disability requires insulin and is managed by a restricted diet. The Board notes that an August 2016 treatment note indicates that the Veteran left work due to a shoulder injury. Additionally, June 2016 and August 2016 VA examiners indicated that the Veteran’s Diabetes Mellitus, Type II does not impact his ability to work. At the October 2020 VA examination for diabetes mellitus, however, the examiner noted that the Veteran has numbness and tingling which limits his ability to perform work related activities involving prolonged walking and standing, opining that the Veteran was capable of performing deskwork that would involve typing or tactile tasks. The record indicates that the Veteran has one year of high school education, earned a GED and was trained as a ramp serviceman. See March 2013 VA Form 21-8940. The Veteran’s work history consists of employment requiring physical labor. Id. Overall, when considering the Veteran’s physical limitations due to diabetic processes, to include his diabetic neuropathy of the right and left lower extremities which were service-connected as of December 6, 2018, as well as his diabetic neuropathy of the right and left upper extremities, he would unlikely be able to gain or maintain more than marginal employment consistent with his background, training, and education at any job. Any type of job would require a degree of physical functioning to carry out the job functions that has been outside the Veteran’s capacity. The Board is unable to conceive of any type of job that would accommodate his functional limitations. According to the October 2020 VA examiner, the Veteran is capable of performing deskwork; however as stated above, his work history consists entire of physical labor, and the Veteran has a high school education. Thus, the evidence shows that the Veteran’s diabetic process alone resulted in unemployability since December 6, 2018. 5. Entitlement to SMC at the housebound rate The Board also finds that although the diabetic process disabilities were not a combined 100 percent rating, for SMC purposes the disabilities satisfy the requirement of a “service-connected disability rated as total.” See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the manifestations of the Veteran’s diabetes has been found to be totally disabling and has an additional service-connected disabilities that are independently rated at 60 percent, the criteria for SMC at the housebound rate were met as of December 6, 2018. Therefore, in light of the Court’s decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted, effective December 6, 2018. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.