Citation Nr: 1648515	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  12-09 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a rating in excess of 20 percent for diabetes mellitus, Type II.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 17, 2016.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1963 to June 1966.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2010 and May 2013 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).  The March 2010 rating decision denied an increased rating for diabetes mellitus, Type II.  The May 2013 rating decision denied a rating in excess of 50 percent for PTSD.

In June 2015, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

In August 2015, the Board remanded this case for additional development, to include the issues of entitlement to service connection for bilateral lower extremity neuropathy and entitlement to service connection for ischemic heart disease.  Thereafter, in a May 2016 and June 2016 rating decisions, the Appeal Management Center (AMC) granted entitlement to service connection for bilateral lower extremity neuropathy and ischemic heart disease.  Where a claim for service connection is granted during the pendency of an appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  The Veteran has not filed a second NOD with regard to the issues of a neuropathy and heart disease, so they are no longer before the Board.

Also in the May 2016 rating decision, the AMC increased the Veteran's disability rating for PTSD to 70 percent, effective April 11, 2012, which was the date of the Veteran's increased rating claim.  As this grant does not represent a total grant of benefits sought on appeal, the claim for increased rating remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In the June 2016 rating decision, the AMC granted entitlement to a TDIU, effective May 20, 2016, which it indicated was the date the Veteran's TDIU claim was received.  The AMC also informed the Veteran that the grant was "a total grant of benefits sought on appeal for this issue."  The Veteran filed his claim for an increased rating for diabetes mellitus on October 1, 2009, and he filed his claim for an increased rating for PTSD on April 11, 2012.  During the pendency of the appeal, he has asserted that he is unemployable, in part, as a result of his service-connected diabetes and PTSD.  As noted by the Board in the August 2015 remand, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Accordingly, the claim for a TDIU is part and parcel of the claims for higher ratings, which have been pending since October 1, 2009.  Thus, despite the AMC's determination to the contrary, the grant of a TDIU from May 20, 2016 does not represent a total grant of benefits sought on appeal, and the issue of entitlement to a TDIU prior to May 20, 2016 remains before the Board.  

However, while this case was in remand status, the AOJ granted entitlement to service connection for lung cancer and assigned a 100 percent rating, effective from March 17, 2016.  The RO also granted entitlement to special month compensation (SMC) under 38 U.S.C.A. § 1114 (s)(1), effective from March 17, 2016.  The Board finds that the current claim for TDIU is limited to consideration of the period prior to March 17, 2016.  It is not categorically true that the assignment of a total schedular rating always renders a TDIU claim moot.  VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C.A. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008).  In Bradley, the U.S. Court of Appeals for Veterans Claims (Court) held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate).  In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect.  Bradley, 22 Vet. App. at 293.

In this case, the assignment of the Veteran's 100 percent schedular evaluation for lung cancer renders the TDIU claim moot from the date of that total rating forward because he was also granted an award of SMC based on the fact that he has a total schedular rating for lung cancer, as well as additional service-connected disabilities independently ratable at 60 percent or more.  Therefore, the Veteran's benefits have already been maximized.  Under such circumstances, the claim for a TDIU from March 17, 2016 to May 19, 2016 is moot and the Board will limit its consideration as to whether TDIU is warranted prior to March 17, 2016.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; neglect of personal appearance and hygiene; impaired impulse control (such as unprovoked irritability with periods of violence); suicidal ideation; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty in establishing and maintaining effective work and social relationships; without more severe manifestations that more nearly approximate total occupational and social impairment.

2.  Throughout the appeal period, the Veteran's diabetes mellitus has been managed by the use of oral hypoglycemic agents, insulin, and a restricted diet, but it has not medically required regulation of his activities.

3.  Prior to March 17, 2016, the Veteran's service connected disabilities precluded him from securing and following substantially gainful employment.


CONCLUSION OF LAW

1.  The criteria for a rating in excess of 70 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.304, 4.1-4.14, 4.130, Diagnostic Code 9411 (2015).

2.  The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2015).

3.  Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU prior to March 17, 2016 are met.  38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3,102, 3.340, 3.341, 4.3, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

As the Board's decision to grant entitlement to a TDIU is completely favorable, no further action with respect to this issue is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim.  This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

In this regard, letters sent to the Veteran in October 2009 and March 2013 provided the notice required under the VCAA, including of the evidence and information necessary to substantiate his increased rating claim, his and VA's respective responsibilities in obtaining such evidence and information, and the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, the record reflects that VA made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, Social Security Administration (SSA) records, and the Veteran's lay statements.  As noted above, the Board remanded this case in August 2015, in part, to obtain outstanding VA treatment records dated from 2010 to the present.  In March 2016, the AOJ obtained updated VA treatment records.  In light of the foregoing, the Board finds that there has been substantial compliance with its August 2015 remand directives with regard to obtaining outstanding records.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.

The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015).

In this case, the Veteran was afforded VA examinations to evaluate his PTSD in March 2013 and March 2016, and he was afforded VA examinations to evaluate his diabetes in February 2010 and March 2016.  The Board finds that the VA examinations are adequate for evaluation purposes because the examiners reviewed the claims file or were otherwise informed of the relevant facts of the Veteran's medical history, considered the lay statements of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's diabetes and PTSD.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim and that no further examinations are necessary.  

As previously noted, the Veteran was provided opportunities to set forth his contentions during a June 2015 hearing before the undersigned.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the undersigned specifically noted the issues on appeal, clarified the Veteran's assertions when necessary, and clarified the evidence needed to substantiate the claim.  Moreover, after the hearing the Veteran was given the opportunity to undergo new VA examinations and submit additional evidence in support of his claim.

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished.  Therefore, appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Increased Ratings

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § Part 4 (2014).  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2014).  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time.  The Board will also 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  A Veteran is competent to report on that of which he or she has personal knowledge.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

The Board has reviewed all of the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims.

A. PTSD

The Veteran contends that he is entitled to a higher disability rating for his PTSD, which is currently assigned a 70 percent rating.

The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  Under the General Rating Formula For Mental Disorders, a 70 percent evaluation is warranted where 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; intermittently illogical, obscure, or irrelevant speech; 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.  Id.

A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  See 38 C.F.R. § 4.126(a).  Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  According to the American Psychiatric Association's DSM-IV, GAF scores from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships.  GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers).  GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).

Turning to the evidence of record, an August 2011 VA treatment record shows that the Veteran requested mental health services to address his chronic PTSD symptoms.  He reported binge drinking, depression, vigilance, flashbacks, intrusive thoughts, angry outburst, and isolation.  He also reported significant sleep issues.  He denied suicidal ideation.  On examination, the Veteran was alert and cooperative.  There was no evidence of abnormal motor activity, and his eye contact was good.  His speech was clear and coherent and normal in tone and volume.  His mood was anxious, and his affect was depressed and tearful.  There was no evidence of auditory or visual hallucination, delusional thinking, or looseness of association or flight of ideas.  His recent and remote memory were intact, and his concentration, judgment, and insight were good.  He was diagnosed with PTSD and assigned a GAF score of 55.  

A January 2012 VA treatment record shows a GAF score of 54.  A February 2012 VA treatment record shows that the Veteran reported having some friends with whom he was socializing, and he planned to help a friend with fixing a camp.  He reported continuing depression and sleep problems.  On examination, the Veteran was alert and cooperative.  There was no evidence of abnormal motor activity, and his eye contact was good.  His speech was clear and coherent and normal in tone and volume.  His mood was depressed, and his affect was full range and mood congruent.  There was no evidence of auditory or visual hallucination, delusional thinking, or looseness of association or flight of ideas.  His recent and remote memory were intact, and his concentration, judgment, and insight were good.  He was assigned a GAF score of 55.  

The Veteran was afforded a VA examination in March 2013.  The Veteran reported that he had a good relationship with his sons, but does not feel like he has anything in common with them.  He indicated that his last relationship with a significant other was eight years ago and that the woman stabbed him with a screwdriver.  He stated that he does not do well in relationships.  The Veteran reported that he spends his time watching movies, playing solitaire on the computer, and going to the VFW to help fix things and run to the bank for them.  He also stated that he had a couple of friends.  The Veteran reported that he had not worked since his initial PTSD examination in November 2005.  The Veteran endorsed the following symptoms: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; suicidal ideation, difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control.  He also endorsed intrusive memories, nightmares, flashbacks, distressing memories, avoidance, anhedonia, detachment, restricted affect, irritability, anger, concentration problems, hypervigilance, and exaggerated startle response.  The examiner assigned a GAF score of 55 and opined that the Veteran's overall level of occupational and social impairment was "occupational and social impairment with reduced reliability and productivity." 

An August 2014 VA treatment record shows that the Veteran was dressed casually with good hygiene.  His attitude as cooperative, his cognition was full, his motor activity was calm, his speech was unremarkable, his mood was euthymic, his affect was congruent, his insight and judgment were good, and his thought processes and thought content were unremarkable.  Cognitive testing showed mild concentration difficulties, but was otherwise within normal limits.  He denied suicidal or homicidal ideation.  

An October 2014 VA treatment record shows that the Veteran reported being more depressed lately, but he denied suicidal ideation.  

During the June 2015 hearing, the Veteran reported that he experienced suicidal and homicidal thoughts, uncontrolled anger outbursts, and nearly continuous panic attacks.  He reported that he sometimes neglects his personal hygiene and that his family has nothing to do with him.  He reported that he saw a psychiatrist and went to group therapy.  

An October 2015 VA treatment record shows that the Veteran reported occasional nightmares, social isolation, and interrupted sleep.  On examination, the Veteran was dressed casually with good hygiene.  His attitude was cooperative, his cognition was full, his speech was unremarkable, his mood was euthymic, his affect was congruent, his insight and judgment were good, and his thought processes and content were unremarkable.  

The Veteran was afforded a VA examination in March 2016.  The Veteran reported daily, variable PTSD symptoms.  He reported depressed mood, guilt, irritability, hypervigilance, and poor sleep.  The Veteran reported that he had not seen his sons in two years.  He indicated that he does not like to communicate with others.  He reported that he rarely leaves his home.  He reported that he hates his neighbors and becomes angry with them, but he denied homicidal ideation directed at anyone.  He reported having fights in bars with the last one less than a year ago.  He also reported verbal confrontations with others.  The Veteran reported that he has two close friends and a girlfriend.  He indicated that they do not go out often due to his hypervigilance.  The Veteran reported that he had not worked since 2005.  He indicated that he goes to a marina and reads.  The Veteran had the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; suicidal ideation, difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; neglect of personal appearance and hygiene; and impaired impulse control.  

On examination, the Veteran was anxious in mood and affect.  Throughout the examination, he folded and refolded a tissue, and he had poor eye contact.  The Veteran's fingernails were dirty.  He reported that he had just been diagnosed with lung cancer.  There was no evidence of psychosis.  The Veteran denied suicidal ideation and homicidal tendencies.  The examiner summarized the Veteran's level of occupational and social impairment as "occupational and social impairment with reduced reliability and productivity."  Regarding occupational functioning, the examiner opined that the Veteran "would likely have difficulty working with groups of people as his irritability has negatively impacted group activity in the past."  The examiner also indicated that "[d] ue to his hypervigilance he would likely have
difficulty working with the public, due to his poor sleep he likely to experience difficulties with memory so he may require directions given several times."

Taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Board finds that the Veteran's PTSD most nearly approximates occupational and social impairment, with deficiencies in most areas, consistent with the currently assigned 70 percent rating.  The above-cited evidence reflects that since the increased rating claim was filed in April 2012, the Veteran's PTSD has primarily been manifested by depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; neglect of personal appearance and hygiene; impaired impulse control (such as unprovoked irritability with periods of violence); suicidal ideation; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty in establishing and maintaining effective work and social relationships.  

Collectively, these symptoms are of the type, extent, severity and/or frequency to result in occupational and social impairment in most areas of the Veteran's life, thus indicating a moderately severe disability picture with deficiencies in most areas.  Nonetheless, the overall disability picture demonstrated by the evidence is not consistent with total occupational or social impairment, as is required for the maximum, 100 percent, disability rating.

The maximum schedular rating of 100 percent is not warranted in this case because there is not total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; 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; and memory loss for names of closes relatives, own occupation, or own name.  

In this regard, there is no documentation of symptoms such as gross impairment in thought processes or communication or persistent delusions or hallucinations; in fact, the Veteran has been consistently able to actively communicate both in group and individual therapy and during VA examinations.  His speech was within normal limits during VA treatment and VA examinations, and the examiners detected no evidence of thought disorders or impaired thought processes.

Similarly, his symptoms have not been manifested by grossly inappropriate behavior or persistent danger of hurting himself or others.  Although the Board notes that the Veteran reported outbursts of anger and a remote history of physical violence, he consistently denied any current violence or active homicidal ideation. Similarly, while the record shows some passive suicidal ideation, the Veteran has consistently denied any recent suicide attempts or plan.  This evidence indicates that although the Veteran experiences impaired impulse control (such as unprovoked irritability with periods of violence) and suicidal ideation, which are symptoms enumerated in the criteria for a 70 percent rating, he clearly does not exhibit a persistent danger to himself or others, as contemplated by the criteria for a 100 percent rating.

Nor does the record show symptoms such as intermittent inability to perform daily living activities (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss of names of close relatives own occupation, or own name. In this regard, the evidence of record shows that the Veteran was consistently noted as oriented to person, time, and place.  Although the Board notes that at times, the Veteran was noted to be disheveled, the Veteran also reported living alone for 20 years.  This evidence indicates that although the Veteran occasionally neglects his personal appearance and hygiene, which is one of the symptoms enumerated in the criteria for a 70 percent rating, he clearly does not exhibit an inability to perform activities of daily living, as contemplated by the criteria for a 100 percent rating.  Additionally, although the Veteran has been described as having memory and concentration problems, there is no lay or medical evidence that the Veteran's psychiatric status is or has been so severe at any point pertinent to this appeal that he has demonstrated memory loss for names of close relatives, his occupational status, or his own name.

Further, total occupational and social impairment has not been shown.  While the record demonstrates marked social isolation and emotional detachment, the evidence also shows that the Veteran has occasional contact with his sons, has at least two close friends, occasionally has a significant other, frequents the VFW, and regularly attends group therapy.  

Additionally, the Board notes that the Veteran was assigned GAF scores between 50 and 55.  GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).  A GAF score can be probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994).  Here, the Veteran's GAF scores are reflective of moderate to serious impairment of occupational and social functioning.  The qualitative descriptions from the above evidence are consistent with such GAF scores, and are consistent with a 70 percent rating.

Additionally, the Board notes that the Veteran's symptoms have resulted in impairment of employment, which is addressed in the TDIU discussion below. Crucially, entitlement to a 100 percent rating contemplates total social impairment in addition to total occupational impairment.  As discussed above, total social impairment is not shown by the evidence of record.

The Board emphasizes that, in analyzing this claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating.  The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for PTSD.  See Mauerhan, supra.

The Board has considered a staged rating, but finds that the Veteran's symptomatology has been stable throughout the appeal period; therefore, assigning staged ratings for such disability is not warranted. 

Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the severity of the Veteran's symptoms are contemplated by a 100 percent rating.  It is also clear that the Veteran has not manifested total occupational and social impairment at any time during the claims period.  38 C.F.R. §§ 4.7, 4.21.  The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating during the appeal period.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.

B. Diabetes Mellitus

The Veteran contends that he is entitled to a higher rating for diabetes mellitus, which is currently assigned a 20 percent disability rating pursuant to Diagnostic Code 7913.

Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is warranted for diabetes mellitus requiring 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 evaluation is warranted for diabetes mellitus requiring more than one daily injection of insulin, 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.  Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  See Note (1) to 38 C.F.R. § 4.119, Diagnostic Code 7913.

The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).  The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities."  Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)).

"Successive" rating criteria in a diagnostic code is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, a veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  For example, Diagnostic Code 7913 is successive in nature because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth.  Camacho, 21 Vet. App. at 366.

Turning to the evidence of record, the Veteran was afforded a VA examination in February 2010.  The Veteran reported taking both insulin and oral medication for control of his diabetes.  Additionally, the examiner noted that the Veteran was instructed to follow a restricted or special diet, but he was not restricted in his ability to perform strenuous activities.  After examination, the examiner noted that the Veteran also had hypertension and erectile dysfunction, neither of which was a complication of diabetes because they both preceded diabetes.  

VA treatment records generally show that the Veteran's diabetes was stable on insulin and oral medications.  A September 2010 VA treatment record shows that the Veteran's diabetes was controlled and he was encouraged to increase regular exercise.  A July 2011 VA treatment record shows that the Veteran reported being "pretty stable overall."  His diabetes was noted as being controlled, and regular exercise was encouraged.  A January 2012 VA treatment record shows that the Veteran was advised to exercise regularly. 

An October 2014 VA treatment record shows that the Veteran requested participation in a wellness center program for exercise.  A preliminary chart review indicated that the Veteran was appropriate for exercise, and had been cleared by his primary care provider for exercise.  

The Veteran was afforded a VA examination in March 2016.  The examiner noted that the Veteran's treatment included prescribed oral hypoglycemic agents and insulin; however the Veteran did not require regulation of activities as part of his medical management of diabetes.  The examiner indicated that the only recognized complication of diabetes was peripheral neuropathy.  

Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 20 percent were not met at any point during the rating period.  In this regard, the Board notes that to warrant a higher rating under Diagnostic Code 7913 the evidence must show diabetes mellitus requiring insulin, a restricted diet, and regulation of activities.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned).

Review of the evidence indicates that while the Veteran's diabetes mellitus is managed by oral medications, insulin, and a restricted diet, there is no medical evidence that the Veteran has had to regulate his activities as defined by Camacho.  Rather, the evidence indicates that the Veteran has been continuously educated on the importance of exercise and that he has been encouraged to exercise to control his diabetes.  In addition, the VA examiners who conducted the February 2010 and March 2016 examinations indicated that the Veteran did not require regulation of activities as part of the medical management of diabetes mellitus.  

The Board recognizes that the Veteran believes he is entitled to an evaluation in excess of 20 percent for his service-connected diabetes mellitus.  In several statements, the Veteran alleged that he in fact had regulated activities.  However, the rating criteria require that regulation of activities is necessary to manage diabetes mellitus.  The record contains no evidence to suggest that this is the case.  Moreover, the regulation of activities criterion refers to regulation of activities medically necessary to control the Veteran's diabetes, rather than to regulation of activities for another purpose.  Here, the Board notes that the Veteran has functional limitations due to his many service-connected disabilities; however, treatment records show that activity was generally advised or encouraged, and do not otherwise show that regulation of activity was necessary to control the Veteran's diabetes.  As such, the Veteran's assertions fail to demonstrate that a higher schedular evaluation is warranted.

In the absence of medical evidence showing that the Veteran has been required to regulate his activities, as defined by Camacho, a rating in excess of 20 percent is not warranted for his service-connected type II diabetes mellitus.  

Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II.  All noncompensable complications are considered part of the diabetic process.  38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1).  The Board finds that the evidence does not support any additional, separate compensable evaluations for complications of the service-connected diabetes mellitus.

Here, the Board notes that the Veteran is already separately service-connected for peripheral neuropathy of the bilateral lower extremities (10 percent for each extremity), and those issues are not currently on appeal.  Moreover, the record reflects that hypertension and erectile dysfunction are not complication of diabetes.

Based on the foregoing, the Veteran has not been shown to meet the criteria for an increased evaluation under the rating criteria.  Although the Veteran has been shown to require insulin and a restricted diet, he does not require a regulation of activities, which is a necessary component for a higher evaluation.  Nor does the evidence support any additional, separate compensable evaluations for complications of the service-connected diabetes mellitus.  Accordingly, the Veteran is not entitled to an evaluation in excess of 20 percent for his diabetes mellitus.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

C. Other Considerations

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected diabetes and PTSD with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated.  There are no additional symptoms that are not addressed by the rating schedule.  The Veteran also has not described any exceptional or unusual features of his diabetes or PTSD, and there is no objective evidence that any manifestations are unusual or exceptional.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disabilities, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced.  In this case, the Veteran's symptoms and manifestations are addressed by the appropriate diagnostic codes.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Accordingly, this is not a case involving an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities.

III. TDIU

The Veteran filed his claim for an increased rating for diabetes mellitus on October 1, 2009, and he filed his claim for an increased rating for PTSD on April 11, 2012.  During the pendency of the appeal, he has asserted that he is unemployable, in part, as a result of his service-connected diabetes and PTSD.  When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Accordingly, while the RO interpreted May 2016 correspondence from the Veteran as a claim for a TDIU, the claim for a TDIU is part and parcel of the claim for a higher rating for diabetes and PTSD, which has been pending since October 1, 2009.  The Board thus finds that the Veteran's claim for TDIU was constructively received by VA on October 1, 2009, the date on which VA received the Veteran's claim for an increased rating for his service-connected diabetes.  

The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful employment.

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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, or if there are two or more disabilities, there shall be at least one 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).  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination.  38 C.F.R. §§ 3.341, 4.16, 4.19.  

The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage).  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995).

In the present case, from October 1, 2009 to August 17, 2011, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 50 percent disabling; (ii) diabetes mellitus, rated as 20 percent disabling; (iii) peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; and (iv) peripheral neuropathy of the left lower extremity, rated as 10 percent disabling.  These disabilities combine to a 70 percent rating.  From August 18, 2011 to April 10, 2012, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 50 percent disabling; (ii) coronary artery disease, rated as 30 percent disabling; (iii) diabetes mellitus, rated as 20 percent disabling; (iv) peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; and (v) peripheral neuropathy of the left lower extremity, rated as 10 percent disabling. These disabilities combine to an 80 percent rating.  From April 11, 2012 to March 16, 2016, the Veteran was service-connected for the following disabilities: (i) PTSD, rated as 70 percent disabling; (ii) coronary artery disease, rated as 30 percent disabling; (iii) diabetes mellitus, rated as 20 percent disabling; (iv) peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; and (v) peripheral neuropathy of the left lower extremity, rated as 10 percent disabling. These disabilities combine to a 90 percent rating.

Thus, at all times prior to March 17, 2016, the Veteran has had at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more, and he therefore has met the schedular requirements for a TDIU.

Accordingly, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  38 C.F.R. § 4.16(a).  

The evidence shows that the Veteran last worked in a substantially gainful occupation in 2005 as a truck driver. See May 2016 VA 21-8940; SSA records. The Veteran graduated from high school. See May 2016 VA 21-8940.

After a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation prior to March 17, 2016. 

In this regard, the Board first observes that the Veteran's 70 percent disability rating for PTSD, in and of itself, demonstrates limited residual ability to obtain and maintain substantially gainful employment.  As discussed above, his GAF scores in the 50 s range are indicative of moderate to serious impairment in social and occupational functioning to include an inability to hold a job. Additionally, the evidence of record shows that the Veteran's PTSD significantly affects his occupational functioning.  

In addition to the evidence cited above regarding the occupational impact of the Veteran's PTSD, the record contains a March 2010 VA examination report, which shows that the Veteran's lower extremity peripheral neuropathy has mild to severe effects on the Veteran's usual daily activities.  The record also contains a March 2016 VA peripheral neuropathy examination which shows that the Veteran's bilateral peripheral neuropathy impacted his ability to work because of numbness and pain with any significant walking.  With regard to the Veteran's diabetes, the record contains a March 2016 VA opinion that the Veteran's diabetes impacted his ability to work.  Additionally, the record contains a May 2016 VA opinion that the Veteran's CAD impacts his ability to work.

After a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation prior to March 17, 2016.  The claim, therefore, is granted.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.


ORDER

Entitlement to a disability rating in excess of 70 percent for PTSD is denied.

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus type II is denied.

Entitlement to a TDIU is granted prior to March 17, 2016, subject to regulations applicable to the payment of monetary benefits.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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