Citation Nr: 21074629 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-55 076 DATE: December 15, 2021 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with depression (hereinafter PTSD), currently rated as 70 percent disabling, is denied. Entitlement to an increased rating for diabetes mellitus, type II (diabetes), currently rated as 20 percent disabling, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment, with deficiencies in most areas. It is not manifested by total occupational and social impairment. 2. The Veteran's diabetes mellitus requires only restricted diet and an oral glycemic agent. It does not require regulation of activities. 3. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code (DC) 9411. 2. The criteria for a disability evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.119, DC 7913. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in February 2019 for further development, which has been completed. INCREASED RATINGS Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Entitlement to an increased rating for PTSD, currently rated as 70 percent disabling is denied. The Veteran's service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411 Under this regulatory provision: a noncompensable rating is warranted when a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. a 10 percent rating is warranted when the Veteran experiences 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 continuous medication. a 30 percent disability 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, mild memory loss (such as forgetting names, directions, recent events). a 50 percent is warranted if the Veteran experiences 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 is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. a 100 percent rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Historically, treatment reports dated April 2014 reflect that the Veteran sought treatment because he wanted to talk about his situation, and how he was feeling. He stated that he has good relationships with each of his two grown sons. He stated that he is currently a retired musician, but he continues to have a number of assignments. He stated that beginning last fall, he began experiencing an increasing feeling of depression. He says that he has had it on and off all his life, but he never sought help. He wanted to sort things out all by himself. He described feelings of loneliness and self-criticism. In May 2014, the Veteran stated that late spring and summer is the best time for him because it involves more activity due to job opportunities. In August 2014, he stated that he had a relatively good summer, with lots of assignments. He acknowledged that when he has enough activities, life is easier to live. He was a little afraid of fall and winter because that is usually a time when he feels depressed again. The Veteran underwent an examination in March 2016. The examiner found that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once per week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances including work or a work like setting; inability to establish and maintain affective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and spatial disorientation. The examiner found that these symptoms resulted in occupational and social impairment with reduced reliability and productivity. Treatment reports dated April 2016 to May 2016 reflect that the Veteran experienced nightmares, anger, isolation, irritability, and episodes of depression. His score on the PCL-5 was indicative of moderate PTSD. The Veteran submitted a Disability Benefits Questionnaire (DBQ) dated October 2017 and completed by Dr. B., who was his treating physician. Dr. B. found that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss; memory loss for names of close relatives, own occupation, or own name; flattened affect; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and spatial disorientation. Dr. B. found that these symptoms resulted in occupational and social impairment with reduced reliability and productivity. Both the March 2016 and October 2017 clinicians found that the Veteran's psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity (the criteria for a 50 percent rating). The RO gave the benefit of the doubt to the Veteran and assigned a 70 percent rating. In order to warrant a rating in excess of 70 percent, the Veteran's PTSD would have to be manifested by 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. There is no medical evidence that the Veteran's PTSD symptoms are manifested by total occupational and social impairment. To the contrary, both examiners noted that the Veteran had good relationships with both of his grown sons. Moreover, he stated that although he is retired, he undertakes assignments. Consequently, though his symptoms may be severe (as evidenced by the 70 percent rating), they do not result in occupational and social impairment that is total. As the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for PTSD; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. Entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling is denied. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, 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 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus requires only restricted diet and an oral glycemic agent. The medical evidence of record is against a finding that regulation of activities was required during the period on appeal. To the contrary, treatment records dated January 2011 to March 2016 reflect that the Veteran was frequently encouraged to increase his activities in order to lose weight. In January 2011, the Veteran took a six-day course of betapred so that he could get into shape and be more physically active. In September 2011, the Veteran was advised that he had high cholesterol and that he needed to try to be more physically active. In October 2011, he was again advised about the impact of physical activity on blood pressure and diabetes. In August 2012, it was noted that the Veteran moves around too little as a result of being overweight. The clinician made suggestions regarding bicycling and swimming. The examiner noted that the Veteran needed to activate the musculature in his legs to prevent problems with edema/varicose veins. In December 2014, the clinician emphasized the importance of physical activity. Bicycling and swimming were suggested. The Veteran submitted an August 2017 DBQ. The clinician noted that the Veteran's diabetes was treated by a prescribed oral hypoglycemic agent. The examiner noted that the Veteran did not require regulation of activities as part of medical management of his diabetes. As noted above, in order for a rating in excess of 20 percent to be warranted, the Veteran's diabetes must require one or more daily injection of insulin, restricted diet, and regulation of activities. In the absence of any evidence that his diabetes requires regulation of activities (avoidance of strenuous occupational and recreational activities) the preponderance of the evidence weighs against the claim. Accordingly, the benefit of the doubt doctrine does not apply, and the claim must be denied. Entitlement to a TDIU is granted. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. Id. Attention should be given to the Veteran's history, education, skills, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran is service-connected for PTSD, evaluated as 40 percent disabling; and diabetes mellitus, evaluated as 20 percent. His combined rating is therefore 80 percent. See 38 C.F.R. § 4.25. Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The Board remanded the appeal in February 2019 to obtain an updated VA Form 21-8940 for any full or part-time work subsequent to 2009. The Board noted that an April 2014 treatment record appeared to indicate that while the Veteran had retired, he had some continuing work as a musician. Following a full and thorough review of the evidence of record, the Board concludes that the evidence is at least in equipoise. According to the Veteran's February 2017 TDIU claim, he was most recently employed in 2009, as a teacher. He completed two years of high school. In a letter sent in July 2019 from the Veteran's attorney, it was indicated that the Veteran has not worked since June 2008. The attorney clarified that the Veteran only performed some volunteer work for a cancer center as a musician. The Veteran provided an updated VA Form 21-8940 in November 2019; it did not reflect any employment in the last five years or additional training or certification. The Veteran submitted an August 2019 Vocational Assessment. The private clinician noted that the Veteran dropped out of high school in the eighth grade and does not possess any additional education or vocational training. He moved to Sweden after discharge from service and worked in some capacity as an art teacher. He has not worked since June of 2009 due to his symptoms of PTSD and complications related to diabetes. Since 2009, the Veteran has worked as a part time musician very occasionally. The clinician found that this employment would not be considered substantial gainful competitive employment but rather marginal employment as it is on a part time basis when the Veteran feels like he is capable of performing. The clinician cited the October 2017 psychiatric examination which found that the Veteran experienced memory loss; spatial disorientation; suicidal ideation; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or work like setting; impaired impulse control such as unprovoked irritability with periods of violence; irritability with unprovoked anger; difficulty concentrating; and hypervigilance. She recognized that according to the examiner, these symptoms result in social and occupational impairment with reduced reliability and productivity. She stated that industry standard for being off-task in a workday is anything more than 10 percent of the time on a chronic basis would not be tolerated in competitive employment, because critical job demands would not be completed. She stated that a person who suffers from occasional or social impairment even on an occasional level with intermittent periods of reduced reliability and productivity would be off-task greater than the allowable amount of time in a workday, and would clearly be outside of what would be tolerated in competitive employment at any level of work. She explained that supervisors in such work settings typically have low tolerance for employees exhibiting excessive anger and outbursts, irritability, sensitivity, argumentativeness, or suspiciousness, especially if coupled with an individual not following through on directives. She noted that the Veteran worked as an art teacher, which is skilled work, but it is completely unlikely that he would be able to utilize any of his obtained skills due to the serious nature of his psychiatric symptoms to include the interference and concentration and pace. Additionally, it is completely unlikely that the Veteran would be able to utilize any skills he obtained while working as a teacher in Sweden or in any other place that may require certification or training and teaching. The clinician opined that the symptoms and limitations caused.by the service-connected PTSD have resulted in the complete inability of the Veteran to perform even sedentary, unskilled, substantial gainful competitive employment. She noted that this is additionally compounded by the fact that the Veteran has a limited education up to the 8th grade and not beyond. Although he does possess transferable skills from his past work history that would directly transfer to alternative sedentary employment, he would not be able to utilize such skills due to his incomplete education or lack of teaching certificate. Additionally, any skills he may have obtained while working as a teacher would be rendered useless due to the severity of his psychiatric symptoms. He was terminated from his employment as an arts teacher in Sweden in June 2009 and has not worked since that time. It has been noted that the termination of his employment was largely due to his symptoms associated with PTSD and complications related to diabetes. His inability to perform in a work setting with unpredictable bouts of poor concentrations, confusion, depression, low motivation, anger, impulsivity, and hypersensitivity, on a frequent basis would impede the workflow on even an unskilled sedentary job and would be disruptive to an unacceptable degree. The Veteran's need for unpredictable breaks due to fatigue or psychiatric symptoms would prevent him from meeting pace and production demands. In addition, his chronic interrupted sleep, confusion, and lack of ambition together with his depression, panic attacks, and intrusive thoughts, would cause an intolerable level of absenteeism. In sum, there is persuasive evidence of record demonstrating that the Veteran's service-connected disabilities alone render him unable to obtain and retain substantially gainful employment. As such, TDIU is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, Counsel 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.