POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served honorably in the United States Marine Corps from April 1966 to March 1969, appeals the Board's decision regarding his claims for an increased rating for PTSD, diabetes mellitus, and TDIU. The Board vacated its prior decision that dismissed these claims, finding they were still on appeal. The veteran sought an increased rating for PTSD beyond the 30% already granted, but the Board denied this, finding his symptoms, while present, did not meet the criteria for greater occupational or social impairment. The Board noted his PTSD symptoms, including sleep disturbance and irritability, but found the VA examiner's assessment of mild or transient symptoms consistent with a 10% rating, and that the veteran's overall symptomatology did not warrant more than a 30% rating. For diabetes mellitus, the veteran sought a rating higher than 20%. The Board denied this, noting that while treatment records showed some uncontrolled periods, the veteran was often noncompliant with medication and diet, and his condition did not require regulation of activities or result in separately compensable complications beyond his already rated peripheral neuropathy. Finally, the veteran sought TDIU. Although he met the schedular requirement for TDIU based on his combined 90% disability rating, the Board denied the TDIU claim. The Board found that his service-connected disabilities, including ischemic heart disease, tinnitus, diabetes, peripheral neuropathy, and PTSD, did not render him unable to secure or follow substantially gainful employment, considering his work history in car sales and janitorial services, and the examiners' findings that his limitations did not preclude employment.

Rationale

Symptoms did not meet criteria for greater impairment; VA examiner found symptoms transient/mild; No indication of symptoms of similar frequency/severity for higher rating

Full Decision Text

Citation Nr: A22011314
Decision Date: 06/16/22	Archive Date: 06/16/22

DOCKET NO. 220404-235723
DATE: June 16, 2022

ORDER

The June 13, 2022, Board decision, only as to the dismissal of the claims for increased rating for posttraumatic stress disorder (PTSD) and diabetes mellitus, and for a TDIU, is vacated.

Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied.

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

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. 

FINDINGS OF FACT

1. The June 13, 2022, Board decision incorrectly dismissed the claims for increased rating for PTSD and diabetes mellitus, and for a TDIU. 

2. The record evidence shows that, for the entire appeal period, the Veteran's PTSD was manifested by, at worst, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

3. The record evidence shows that, for the entire appeal period, the Veteran's diabetes mellitus was controlled by the use of oral medication, insulin injections, and a restricted diet, without regulation of activities, and does not result in separately compensable complications other than his separately rated peripheral neuropathy of the bilateral upper and lower extremities.

4. The record evidence shows that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for partial vacatur of the June 13, 2022, Board decision as to the claims for increased rating for PTSD and diabetes mellitus, and for a TDIU, have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.904 (a), 20.1304(c).

2. The criteria for an initial rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

3. The criteria for a disability rating greater than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913.

4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Marine Corps from April 1966 to March 1969.

This appeal falls under the provisions of the Appeals Modernization Act (AMA).  84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 19.2.  This law creates a new framework for veterans dissatisfied with the Department of Veterans Affairs' (VA) decision on their claim to seek review.  This Board decision is consistent with the new AMA framework.

In the April 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal.  38 C.F.R. § 20.301.

1. The June 13, 2022, Board decision, only as to the dismissal of the claims for increased rating for PTSD and diabetes mellitus, and for a TDIU, is vacated.

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904.

The Board on its own motion finds that its decision of June 13, 2022, dismissed the claims for increased rating for diabetes mellitus and PTSD, and for a TDIU, incorrectly, with the logic that these
13, 2022, Board decision, only as to the dismissal of the claims for increased rating for PTSD and diabetes mellitus, and for a TDIU, is vacated.

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904.

The Board on its own motion finds that its decision of June 13, 2022, dismissed the claims for increased rating for diabetes mellitus and PTSD, and for a TDIU, incorrectly, with the logic that these issues had already been decided by the Board. However, because they stem from a separate rating decision, they were still on appeal. Thus, the dismissal of these appeals should be vacated and reconsidered by the Board on the merits.

The Board notes that the issues of entitlement to an increased rating for diabetic peripheral neuropathy of the right and left upper extremities, and the effective date of these claims, as well as the effective date of the claim for PTSD, were decided in the June 13, 2022, decision. These issues remain final and undisturbed.

2. Entitlement to a rating in excess of 30 percent for PTSD is denied.

The Veteran's PTSD is evaluated as 30 percent disabling as of November 14, 2019, the date of service connection, pursuant to DC 9411, which provides that such disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130.

Turning to the evidence of record, VA treatment records reflect a negative PTSD screening in September 2018. However, in October 2019, the Veteran sought treatment for his PTSD, stating he had struggled with such for more than 40 years and was finally ready to do something about it. He reported frequent nightmares, striking out in his sleep, intrusive thoughts of traumatic experiences that occurred while on active duty, irritability, anger outbursts and hypervigilance.

At a November 2019 VA mental health appointment, the Veteran reported poor sleep, nightmares, and sitting and staring while ruminating on military experiences. He also stated these problems had ruined his first marriage and relationships with his children. However, he stated he loves his [current] wife more than anything and would give his life to her, but he can't bring himself to show affection or speak loving words. He reported he was not showering regularly, and that he had little interest in doing anything. A mental status examination revealed his appearance was appropriate, he was oriented times four, his speech was within normal limits, his affect euthymic, and his thought processes logical, but that he had difficulty expressing himself. He denied any homicidal or suicidal thoughts as well as hallucinations and delusions. At such time, he was given a provisional diagnosis of PTSD, and scored a 50 on a self-report measure that assesses symptoms of PTSD. Such score indicates "severe symptoms reported."

A letter submitted by the Veteran's wife, O.H., in December 2019, also describes the Veteran's difficulty sleeping. Specifically, O.H. stated the Veteran has night sweats, screams out loud, and has accidently struck her in his sleep. She also noted that during the day he often just stares into space and doesn't hear her when she speaks to him.

The Veteran underwent VA examination in December 2019. At such time, he reported having trouble initiating and maintaining sleep, and occasional nightmares. He was married with two daughters and described the relationships as "good." Additionally, he has a stepchild, three grandchildren and one great grandchild. He described his wife as a "saint." Prior to retiring in 1997, he sold cars and described himself as "consumed with his job." He reported being fired once for beating up a co-worker who came between him and a customer. The examiner noted he did not experience joy. The Veteran reported symptoms of depressed mood, anxiety, and chronic sleep impairment. Further, the VA examiner noted the Veteran was well-groomed, and had linear cognition with no evidence of psychosis. His mood was stable and appropriate. His affect was congruent, if somewhat flat. The VA examiner found the Veteran's PTSD signs and symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, which is consistent with a 10 percent rating under the General Rating Formula.

VA treatment records dated December 2019 and January 2020 indicate the Veteran attended group counseling sessions for his PTSD. At a July 2020 mental health examination, the Veteran was well-groomed, cooperative with good eye contact. He was oriented times four,
 anxiety, and chronic sleep impairment. Further, the VA examiner noted the Veteran was well-groomed, and had linear cognition with no evidence of psychosis. His mood was stable and appropriate. His affect was congruent, if somewhat flat. The VA examiner found the Veteran's PTSD signs and symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, which is consistent with a 10 percent rating under the General Rating Formula.

VA treatment records dated December 2019 and January 2020 indicate the Veteran attended group counseling sessions for his PTSD. At a July 2020 mental health examination, the Veteran was well-groomed, cooperative with good eye contact. He was oriented times four, his speech was within normal limits, his mood was neutral, pleasant and calm, and his was mood congruent with full range. His thought processes logical, linear, and goal directed. He denied any homicidal or suicidal thoughts, and there was no evidence of hallucinations and delusions.

The Board is not persuaded that the evidence supports granting the Veteran's claim of entitlement to an initial rating greater than 30 percent for his service-connected PTSD. The record evidence shows that the Veteran's PTSD is manifested by psychiatric symptomatology resulting in, at most, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks throughout the pendency of the appeal. The nature, frequency, duration, and severity of such symptomatology, to include the Veteran's reported sleep impairment, including insomnia and nightmares, does not more nearly approximate occupational and social impairment with reduced reliability and productivity at any time during the appeal. As pertinent to his occupational functioning, at his December 2019 VA examination, he stated that he retired about 1997 from a career selling cars. He stated he was consumed by the job although he also reported being fired once for a physical altercation. He did not report and the record does not reflect that he is unable to leave his home to do such activities as shop, go to church, or golf. As pertinent to his social functioning, the evidence indicates that he maintained good relationships with his wife and daughters during the pendency of the appeal.

Further, the December 2019 VA examiner, who considered the totality of the Veteran's psychiatric symptomatology and the resulting functional impairment, found that his PTSD resulted in, at most, mild or transient symptoms that decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or were controlled by medication. These findings are consistent with a 10 percent rating under the General Rating Formula. The Board affords significant probative value to the VA examiner's determinations as such were based on psychological evaluations of the Veteran during the appeal period and consideration of his own statements of his symptoms in light of the rating criteria. Such evidence, with consideration of the totality of the nature, frequency, severity, and duration of the Veteran's psychiatric symptomatology as demonstrated by the contemporaneous medical evidence of record, indicates his psychiatric symptomatology was not of sufficient severity to result in greater impairment of his occupational or social functioning. There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 30 percent under DC 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent for his service-connected PTSD. In summary, the Board finds that the criteria for an initial rating greater than 30 percent for PTSD is not warranted.

2. Entitlement to a disability rating greater than 20 percent for diabetes mellitus.

The Board next is not persuaded that the evidence supports granting the Veteran's claim for a disability rating greater than 20 percent for his service-connected diabetes mellitus. VA treatment records reflect that he was prescribed Metformin, Lantus, and empagliflozin, and insulin to treat his service-connected diabetes mellitus throughout the period on appeal. A November 2019 VA examination reflects that the Veteran's diabetes mellitus was treated by oral medication and insulin injections, and managed by a restricted diet, but did not require regulation of activities. The November 2019 examiner stated that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. These episodes did not require any hospitalizations in the previous year. The examiner also stated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus. No complications of diabetes mellitus were noted other than the Veteran's separately rated diabetic peripheral neuropathy of the bilateral upper and lower extremities. This examiner further stated that the Veteran's diabetic mellitus did not impact his ability to work.

While VA treatment records reflect
 was treated by oral medication and insulin injections, and managed by a restricted diet, but did not require regulation of activities. The November 2019 examiner stated that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. These episodes did not require any hospitalizations in the previous year. The examiner also stated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus. No complications of diabetes mellitus were noted other than the Veteran's separately rated diabetic peripheral neuropathy of the bilateral upper and lower extremities. This examiner further stated that the Veteran's diabetic mellitus did not impact his ability to work.

While VA treatment records reflect the Veteran's diabetes mellitus was uncontrolled at times, these records also reflect that he often was noncompliant with his diabetes medication and diet. More importantly, these records do not show that the Veteran's diabetes mellitus required restriction of activities and instead show that he was encouraged to be physically active. In November 2018, he was instructed to exercise at least 30 minutes three times a week and any increase in physical activity may be useful in controlling blood pressure. At such time, it was noted he walked the dog three times a week. These records reflect that he reported biking with the dog 1.5 miles a day and occasional golfing.

The Board notes here that "regulation of activities" is defined under DC 7913 as the "avoidance of strenuous occupational and recreational activities." The Board finds no evidence showing that the Veteran's service-connected diabetes mellitus requires regulation of activities. The Court has held that medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Thus, the Board finds that the medical evidence of record does not establish that regulation of activities is required to treat the Veteran's service-connected diabetes mellitus. Consequently, the evidence does not support assigning a disability rating greater than 20 percent for this disability under DC 7913. The Board also finds that the Veteran's diabetes mellitus does not result in additional separately compensable complications other than his separately rated peripheral neuropathy of the bilateral upper and lower extremities.

3. A TDIU is denied.

The Board also is not persuaded that the evidence supports granting the Veteran's TDIU claim. Service connection currently is in effect for ischemic heart disease, evaluated as 60 percent disabling, tinnitus, evaluated as 10 percent disabling, diabetes mellitus, evaluated as 20 percent disabling, diabetic neuropathy of the right lower extremity and of the left lower extremity, each evaluated as 10 percent disabling, diabetic peripheral neuropathy of the right upper extremity, evaluated as 20 percent disabling, diabetic peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling, diabetic peripheral neuropathy of the right lower extremity and of the left lower extremity, each evaluated as 10 percent disabling, and PTSD, evaluated as 30 percent disabling. The Veteran's combined disability evaluation for compensation is 90 percent for the entire appeal period. Thus, he meets the schedular requirement for a TDIU for the entire appeal period. See 38 C.F.R. § 4.16 (a).

The record evidence shows that the Veteran's highest level of education is two years of college, and his employment history involved working full-time as the owner/janitor of a janitorial company from 2001 to 2017. Prior to this, the Veteran worked in car sales for 30 years until he retired in 1997.

With respect to the functional impairment associated with the service-connected disabilities, the Board notes that, while there is no VA examination for the service-connected ischemic heart disease during the period on appeal, his most recent examination in March 2014 noted that he reported fatigue and lack of energy interfered with his chores/activities around his home. At that time, he still was employed full-time as a janitor for an office building and was able to complete some amount of physical labor. In November 2019 he had VA examination for his service-connected diabetes mellitus and peripheral neuropathy disabilities. At such time, the examiner noted the peripheral neuropathy would have some impact on his ability to work as he would have an unsteady gait. This examiner also opined his diabetes mellitus would have no impact on his ability to work.

In December 2019, the Veteran underwent examination for his PTSD. As noted above, the VA examiner found the Veteran's PTSD signs and symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress. This is consistent with a 10 percent rating
 as a janitor for an office building and was able to complete some amount of physical labor. In November 2019 he had VA examination for his service-connected diabetes mellitus and peripheral neuropathy disabilities. At such time, the examiner noted the peripheral neuropathy would have some impact on his ability to work as he would have an unsteady gait. This examiner also opined his diabetes mellitus would have no impact on his ability to work.

In December 2019, the Veteran underwent examination for his PTSD. As noted above, the VA examiner found the Veteran's PTSD signs and symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress. This is consistent with a 10 percent rating under the General Rating Formula.

In regards to his physical activities, as noted above, the Veteran remained active by walking his dog, biking, and golfing. There also are numerous references in VA treatment records where the Veteran stated that he was retired.

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Based upon a review of the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Critically, none of the VA examiners who examined the Veteran psychologically and/or physically found his service-connected disabilities, either alone or in combination, precluded his employment. The Board affords significant probative weight to the VA examiners' opinions as such were based on physical and psychological examinations of the Veteran and a review of the record, to include his medical history, work history, and lay statements. The record reflects that such disabilities, to specifically include his peripheral neuropathy, limit him in regard to his ability to perform physical work as he has an unsteady gait. These limitations would not interfere with his ability to successfully secure and follow a substantially gainful occupation consistent with his experience in owning his own janitorial business and in sales. The Board notes that the Veteran's sales experience was primarily in car sales. Such experience provides skills in customer service, presentation, negotiation, communication, and management that are applicable in most sales positions. In other words, the Board finds that the Veteran is capable of performing the mental and physical acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are generally performed while sitting at a desk. This would allow him to alternate between sitting and standing and would not require that he remained seated for more than 10 minutes at a time. The Board finds that this is consistent with the functional limitations associated with the Veteran's service-connected disabilities as reflected by the medical and lay evidence of record. Withers v. Wilkie, 30 Vet. App. 139 (2018). He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU. In summary, Board finds that the criteria for a TDIU have not been met.

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Department of Veterans Affairs

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.