Citation Nr: 21011418 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-12 243 DATE: March 1, 2021 ORDER An increased rating of 70 percent for the Veteran's posttraumatic stress disorder (PTSD) is granted. A rating in excess of 20 percent for the Veteran's diabetes mellitus type II (diabetes) is denied. A total disability rating based on individual unemployability (TDIU) is granted, effective January 21, 2010. VETERAN’S CONTENTIONS The Veteran contends that he is entitled to a rating in excess of 50 percent for his PTSD. See January 2021 Informal Hearing Presentation. In support of his argument asserting entitlement to a higher rating, the Veteran reported that his service-connected PTSD caused significant distress or impairment in social, occupational, or other important areas of functioning Id. Specifically, the Veteran stated that he could not tolerate crowds, was separated from his wife due to his PTSD symptoms, and had suicidal ideations. See January 2019 VA Examination. The Veteran also contends that he is entitled to a rating in excess of 20 percent for his diabetes condition. See October 2015 VA Form 9. Specifically, the Veteran stated that he was taking insulin daily and had both a stroke and a heart attack, which were related to his diabetes. Id. Lastly, the Veteran also stated that he became too disabled to work in November 2006 due to his PTSD, diabetes, hepatitis C and hypertension. See January 2021 Veterans Application for Increased Compensation Based on Unemployability. After November 2006, the Veteran started his own insurance agency, but could only work 10 to 15 hours per week until October 2, 2011 due to his disabilities. See February 2014 VA 21-0820 Report of General Information. FINDINGS OF FACT 1. The Veteran’s PTSD is productive of deficiencies in the areas of work, family relations, judgement, thinking, and mood. 2. The Veteran reported that his increased lack of patience and tolerance with people affected his ability to interface with insurance clients. See February 2010 VA Treatment Record. Subsequently, in October 2011, the Veteran reported he closed his insurance agency down because of his health problems and an inability to deal with stress. See February 2014 Report of General Information and March 2012 VA Treatment Record. The Veteran reported that increased stress caused him to become lightheaded, and in the past, caused him to lose consciousness. See March 2012 VA Epilepsy Treatment Note. 3. The Veteran has been married twice and the first marriage ended with divorce. See March 2012 VA Treatment Record. The Veteran had three children from his first marriage and has two stepchildren with his current wife. Id. In February 2010, the Veteran reported marital strife and denied having good social/family support. See February 2010 VA Treatment Record. After twenty-seven years of marriage, the Veteran reported that he and his current wife separated due to his PTSD symptoms. See January 2019 VA examination. The Veteran reported having a good parent-child relationship with his children. See February 2010 VA Treatment Record. However, the Veteran also reported that his family told him that he gets angry too often and too quickly. See May 2015 VA Treatment Record. 4. The Veteran also reported that he was irritable, demanding, inflexible, and that he does not like crowds. See March 2012 VA Treatment Record; see also, February 2010 VA Treatment Record and January 2019 VA Examination. Due to not liking crowds, the Veteran reported that he was unable to attend to his son’s professional football games. See March 2012 VA Examination. In February 2010, the Veteran was hospitalized after he experienced a worsening in his mood and had suicidal ideations. See February 2010 VA treatment record. After his grandson walked in on the Veteran with a gun pointed at himself, the Veteran checked himself into the hospital and gave his guns to his adult daughter. Id. The Veteran also reported a suicide attempt in the past. See September 2010 Social Security Administration Records and February 2010 VA Treatment Record. 5. The Veteran additionally reported problems with concentration and memory. See July 2010 Social Security Administration Assessment. The Veteran stated that he does not trust people and has occasional nightmares about combat-related events. See February 2010 VA Treatment Record and January 2019 VA Examination. The Veteran also reported that he does not have close relationships and had a sense of foreshortened future. Id. He reported that he saw things in his sleep, but denied these visions while awake. Id. A September 2010 clinician found that the Veteran also experienced hallucinations. See September 2010 Social Security Administration Medical Treatment Record. 6. The Veteran reported that he experienced depression, intense anxiety, felt hopeless, and felt desperation. See February 2010 VA Treatment Record. The Veteran also reported a reduced appetite and decreased interest in activities. See October 2011 Social Security Administration Decision. 7. The Veteran reported that he attended church twice a week and social club once a week. See July 2010 Social Security Administration Record. 8. The January 2019 examiner reported that the Veteran’s PTSD symptoms include panic attacks more than once a week, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, and difficulty in establishing and maintaining effective work and social relationships. 9. The Veteran’s diabetes requires an oral hypoglycemic agent, daily insulin injection, and a restricted diet, but does not require regulation of activities See January 2019 VA Examination. 10. Since January 21, 2010, the Veteran’s service-connected disabilities have prevented him from securing and maintaining a substantially-gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent for the Veteran’s PTSD disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. 3. The criteria for a TDIU have been met, effective January 21, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to March 1974. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, this case was remanded by the Board. This case has now returned to the Board for appellate review. Increased Rating 1. An increased rating of 70 percent for the Veteran’s posttraumatic stress disorder (PTSD) is granted. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, the Veteran’s PTSD disorder is rated as 50 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, a 30 percent rating is assigned for 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 rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the January 2019 VA examiner concluded that the Veteran’s PTSD disorder was productive of occupational and social impairment with reduced reliability and productivity, but that determination is not binding on the Board. As previously detailed in the Findings of Fact section, the Veteran’s PTSD disorder results in irritability, an inability to handle stress that affected his ability to work, caused a marital separation, and depressed mood. See January 2019 VA Examination. When evaluating the medical evidence of record coupled with the Veteran’s lay statements, the Board finds that the record demonstrates that the Veteran’s PTSD disorder is more severe than as determined by the VA examiner, as it impairs his family relations, his ability to work, his mood, his thinking, and his judgment. Since the Veteran experienced impairments at work, the Board finds by analogy that the Veteran would also experience impairment in the area of school, were he to attend school. Therefore, the Board finds that an increased 70 percent rating is warranted. In support of this determination, the Board references post-service treatment records, the January 2019 VA examinations, and the Veteran’s lay statements which show that his PTSD is productive of symptoms associated with a 70 percent rating (suicidal ideation, near-continuous depression, and an inability to establish and maintain effective relationships). See VA Treatment Records dated February 2010 and March 2012 and January 2019 VA Examination. Throughout the period on appeal, the Veteran experienced occupational and social impairment, with deficiencies in most areas. VA examinations and post-service VA treatment records indicate that the Veteran’s insight and judgment were fair, his thought process and speech was normal. See February 2010 VA Treatment Record, September 2010 SSA Medical Record, and January 2019 VA Examination. However, these medical records also show that the Veteran experiences near continuous anxiety and depression, suicidal ideation, anger and irritability, decreased interest in activities, and a strong distrust in others which contributes to an inability to establish and maintain effective relationships. See March 2012 VA Treatment Record. The Veteran has not attended his son’s professional football games and stated that he no longer participates in activities he used to enjoy, such as golfing, swimming, and traveling, and he experiences suicidal ideation. Lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the lay statements of record to be credible. As such, the Board finds that, throughout the period on appeal, the Veteran’s PTSD symptoms consistently reflect suicidal ideation, near-continuous depression, and an inability to establish and maintain effective relationships, which are productive of occupational and social impairment, with deficiencies in most areas, and are contemplated by the 70 percent rating criteria. Although the Board finds that a 70 percent rating is warranted, it also finds that the next-higher rating of 100 percent is not warranted. In support of this determination, the Board finds that the Veteran’s PTSD disorder is not productive of total social impairment as contemplated by the criteria for a 100 percent rating. Here, although the he does not attend his son’s NFL games, the Veteran reported that he still attends church and a social club a few times a week. See July 2010 Social Security Administration Records. The Board also acknowledges that the Veteran may suffer from hallucinations as reported by the September 2010 clinician, but the record does not show that he has persistent hallucinations as contemplated by the 100 percent rating. Although the Veteran experiences impairment in most areas as contemplated by the regulation, it cannot find that his condition is productive of total social impairment, in line with an even higher 100 percent rating. As to the Veteran’s expressed suicidal ideation, this symptom is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by a 100 percent disability rating.  Although the Veteran was hospitalized in February 2010 due to worsening mood and suicidal ideations, the Veteran regularly denied intent or a plan involving self-harm, as well as during his VA examinations. But for scattered reports of suicidal ideation noted in his post-service treatment records, the Veteran generally denied an intent or plan to self-harm during the period on appeal. Further, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. As such, a higher 100 percent rating for the Veteran’s unspecified anxiety disorder is not warranted. Based on the foregoing, the Board finds that the severity of the Veteran’s PTSD disorder symptoms warrants a 70 percent evaluation effective January 21, 2010, but no higher. See 38 C.F.R. § 4.7. 2. A rating in excess of 20 percent for the Veteran’s diabetes mellitus type II (diabetes) is denied. Here, the Veteran is rated at 20 percent for his service-connected diabetes pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for 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 rated. A 100 percent rating is assigned for one or more 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable diabetes complications are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process under the diagnostic code. Id., Note 1. The Veteran was first afforded a VA examination in April 2010, which revealed that the Veteran was not prescribed insulin, and that his diabetes was managed by a restricted diet and oral hypoglycemic agents. See April 2010 VA Examination. However, pursuant to a December 2017 Board remand, the Veteran was afforded a VA examination for his diabetes mellitus in January 2019. At that time, the VA examiner noted that the Veteran's diabetes was managed by a restricted diet, oral hypoglycemic agents and 2 insulin injections per day. The examiner also noted that his diabetes required the regulation of activities, reasoning that the Veteran’s restricted diet was a regulation of activities. The Board acknowledges that the examiner reported a restricted diet as regulation of the Veteran’s activities. However, the Board finds that the Veteran’s April 2010 VA examination, private treatment records, and VA treatment records do not show that the Veteran was required to regulate his activities. “Regulation of activities” means that “the evidence must show that it is medically necessary for a claimant to avoid strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. Ap. 360, 361 (2007). A restricted diet does not equate to a requirement that a claimant avoid strenuous occupational and recreational activities. The Board also acknowledges that the VA examiner noted that the Veteran’s diabetes impacted his ability to work. Specifically, the examiner noted that the Veteran’s diabetes caused him to be unable to think straight and concentrate due to abnormal blood sugar levels. Additionally, the January 2019 examiner stated that the Veteran’s cerebral vascular accident (CVA) was related to his diabetes condition. Therefore, the January 2019 examiner found that the CVA caused dysarthria which limited the Veteran’s ability to communicate. Although the Board is sympathetic to the negative impact that the Veteran’s diabetes has caused, the Board finds that the record does not show a regulation of activities as contemplated in Note 1 of Diagnostic Code 7913. The Board finds the competent lay and medical evidence of record do not support the award of an increased rating of 40 percent for diabetes mellitus because there is no medical evidence demonstrating that control of the Veteran’s diabetes mellitus requires the regulation of activities. Further, there is no indication in the record that the Veteran had episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization or regular visits to a diabetic care provider as is required for a 60 percent rating or higher. Accordingly, an evaluation in excess of 20 percent is denied. The Board has considered the applicability of the benefit of the doubt doctrine; but, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. A total disability rating based on individual unemployability (TDIU) is granted, effective January 21, 2010 is granted. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991). However, VA may not take into account the individual veteran’s age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment—defined as when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)—shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board finds that the Veteran first met the schedular requirement for a TDIU as of November 9, 2005. Since that date, he has been in receipt of a combined 80 percent disability rating, or higher. Regarding the Veteran’s education, training, and occupational history, the record reflects that: (1) the Veteran obtained bachelor’s degree; (2) he worked as a car salesman and insurance agent; and (3) he completed maintenance tasks for his wife’s daycare. See October 2011 Social Security Administration Record, February 2010 VA Treatment Record, and January 2019 VA Examination. Moving beyond the Veteran’s education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran’s service-connected disabilities on his ability to obtain and maintain substantially-gainful employment. Specifically, the Veteran stated that beginning in January 2010, he could no longer deal with the stress from work, as detailed in the Findings of Fact section above. Additionally, the Veteran reported that his doctor told him that he needed to quit his job due to his health. See February 2014 VA 21-0820 Report of General Information. Although the Veteran closed his insurance agency in October 2011, the Veteran reported that prior to closing, he worked between 10 to 15 hours per week at his business and sometimes less. See February 2014 VA 21-0820 Report of General Information; see also August 2018 Statement in Support of Claim. The Veteran reported not being able to accept new clients due to his health and stated that his PTSD symptoms made client interfacing difficult. See February 2010 VA Treatment Record and August 2018 Statement in Support of Claim. The Veteran reported that although his self-owned business had monthly income between $4,100 and $4,300, he stated that he spent approximately $3,400 per month in expenses. See August 2018 Statement in Support of Claim. Based on the Veteran’s lay reports, the Board finds that the Veteran was unable work outside of a “marginal employment” setting. Under 38 C.F.R. § 4.16(a), the VA may make determinations regarding marginal employment on a “facts found basis when earned annual income exceeds the poverty threshold.” See Cantrell v. Shulkin, 28 Vet. App. 382, 389-390 (2017). Here, the Veteran’s self-owned business was a protected environment because he was able to work less than 10 hours a week sometimes and miss up to four months of work, but was still able to keep his job. See 38 C.F.R. § 4.16(a) (“Marginal employment shall not be considered substantially gainful employment... Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold.”). In light of the occupational effects of the Veteran’s service-connected disabilities—and resolving all reasonable doubt in the Veteran’s favor—the Board finds that the Veteran is precluded from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU is warranted—effective January 21, 2010. See 38 C.F.R. § 4.16(a). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster 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.