Citation Nr: 1313681 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 07-27 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for myasthenia gravis, to include as due to exposure to herbicides. 2. Entitlement to service connection for diplopia, to include as due to diabetes mellitus and hypertension. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus, with erectile dysfunction. 4. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1967. He also served in the Navy Reserves following this verified period of active service and last drilled in the Navy Reserves in June 2003. See August 2003 letter from Veteran and accompanying Service Department records. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In an October 2005 rating decision, the RO denied entitlement to an evaluation in excess of 20 percent for diabetes mellitus and entitlement to service connection for diplopia (claimed as blindness and double vision). By way of background, the Board notes that in an April 2007 rating decision, the RO granted entitlement to service connection for renal insufficiency with hypertension with a 20 percent evaluation, effective November 30, 2006, as well as service connection for erectile dysfunction with a non-compensable evaluation and Special Monthly Compensation (SMC ) for loss of use of a creative organ. In an August 2007 Statement of the Case (SOC) the RO continued the denials of entitlement to an evaluation in excess of 20 percent for diabetes mellitus and entitlement to service connection for diplopia (claimed as blindness and double vision). The Veteran filed his Substantive Appeal with respect to these continued denials shortly thereafter in August 2007. In a May 2009 rating decision, the RO denied the Veteran's claims for entitlement to myasthenia gravis and TDIU. The Veteran appealed these determinations. In a May 2012 decision, the Board decided several issues, including denying entitlement to service connection for myasthenia gravis and diplopia. The Board additionally remanded entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction, entitlement to service connection for peripheral neuropathy, and entitlement to TDIU. In a March 2012 rating decision, the VA granted entitlement to service connection for peripheral neuropathy of all four extremities, thus that issue has been granted in full and is no longer on appeal. In April 2012, the Court of Appeals for Veterans Claims (Court) vacated the Board's decisions denying entitlement to service connection for myasthenia gravis and diplopia, and remanded the issues for additional development. The Veteran did not appeal the Board's decisions regarding entitlement to higher ratings for sleep apnea, hypertension, and for service connection for emphysema and high cholesterol. The issues of entitlement to service connection for: Dupytren's contracture, right shoulder pain, weight gain, low levels of good cholesterol, nicotine dependency, Peyronie's disease, preuritus ani, neck pain, restless leg syndrome, cataracts, and hip joint pain, and entitlement to an increased rating for renal insufficiency have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. It has not been shown by competent and probative evidence that the Veteran incurred myasthenia gravis in service or that myasthenia gravis is otherwise attributable thereto, including his presumed exposure to herbicides. 2. It has not been shown by competent and probative evidence that the Veteran incurred diplopia in service, that diplopia is otherwise attributable thereto, or that diplopia was caused or aggravated by service-connected diabetes mellitus; rather, the competent and probative evidence shows that diplopia is attributable to nonservice-connected myasthenia gravis. 3. The Veteran's diabetes mellitus requires insulin, an oral hypoglycemic agent and restricted diet. Medical records do not show that he suffered from erectile dysfunction and a deformity of the penis concurrently. 4. The Veteran is currently service connected for: renal insufficiency associated with diabetes mellitus (60 percent), sleep apnea (50 percent), diabetes mellitus with erectile dysfunction (20 percent), hypertension (10 percent), diabetic neuropathy of the upper and lower extremities (10 percent each extremity), left shoulder degenerative joint disease (noncompensable), and allergic rhinitis (noncompensable). He has had a combined evaluation for compensation of 70 percent from October 24, 2006 and 90 percent from February 28, 2008. 5. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities combine to render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for myasthenia gravis is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309 (2012). 2. Service connection for diplopia is not established. 38 U.S.C.A. §§ 1110 , 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for an initial disability evaluation in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913, 7522. 4. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in May 2005 and April 2009. Additional VCAA notice was provided in March 2008, March 2009, and October 2009. Many of these letters, in addition to a March 2006 letter, provided the Veteran with notice regarding how ratings and effective dates are assigned. VA has obtained the Veteran's service treatment records, VA records, Social Security Administration (SSA) records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations and obtained medical opinions as to the etiology of myasthenia gravis, as well as afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. It is noted by the Board that the Veteran has asserted that he first sought medical treatment through VA sometime in the 1960s. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). The RO attempted to obtain such records, but none were located. Moreover, it is clear to the Board that no such records exist as the record shows that the Veteran first sought VA treatment in April 1999. See April 27, 1999, treatment record noting "new to VA." In June 2012, the RO issued a memorandum of unavailability for records between 1963 and April 1999. Accordingly, no further efforts are necessary in this regard. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations and opinions of record are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms, and the opinions are supported by rationales and evidence. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service connection-Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. As the Veteran filed his claim prior to this date, the amendment is inapplicable to the current claim. A veteran is entitled to a presumption of service connection if he is diagnosed as having certain enumerated diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). Regulations pertaining to Agent Orange exposure have expanded to include all herbicides used in Vietnam. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange or similar herbicide. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.313a. The diseases for which service connection may be presumed due to an association with exposure to herbicide agents consist of: chloracne or other acneform diseases consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphatic leukemia, multiple myeloma, non-Hodgkin's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, cancer of the lung, bronchus, larynx or trachea, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma, ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e). Additionally, certain chronic diseases (to include myasthenia gravis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for myasthenia gravis). 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection-Factual Background and Analysis The Veteran asserts that his myasthenia gravis is due to his service, to include due to exposure to Agent Orange during his service in the Republic of Vietnam. The Veteran has also argued that his diplopia is due to his diabetes mellitus and hypertension. A review of the Veteran's VA records shows that in February 2005 he was seen in optometry with a complaint of binocular diplopia, with an onset of 2 months prior. The Veteran was apparently informed, initially, that his diplopia was related to diabetes mellitus. The physician indicated that his symptoms were likely "ischemic due to" diabetes mellitus and hypertension, and did not think that an MRI was necessary as the Veteran did not have any other neurological symptoms at that time. Several days later in February 2005, a triage/AEU clinic nursing note from the VAMC documents a complaint of tingling hands and inability to grip a towel. Diplopia due to limited muscle function was assessed at this time. A subsequent VA physician note also dated in February 2005 documents that the Veteran was a non-insulin dependent diabetic, complaining of a drooping right eyelid for 3 days, as well as diplopia. Also noted was a history of 3rd nerve palsy on the right side 2 weeks prior and weakness in the arms and legs. An MRI and CT scan revealed no pathology. An assessment of 3rd nerve palsy most likely due to diabetes was made at this time. The Veteran was admitted to the VAMC for evaluation in mid February 2005. The records associated with this admission include a study which showed "neuromuscular junction defect, such as in myasthenia gravis." Additionally, in February 2005, a positive tensilon test and repetitive nerve stimulation testing was found to be consistent with myasthenia gravis. He was discharged with a diagnosis of generalized myasthenia following diagnostic studies. His muscle weakness and ocular weakness were noted to be due to myasthenia gravis. In June 2005 the Veteran was afforded a VA examination based upon a review of the claims file, including his service treatment records. The examiner noted that myasthenia gravis had been diagnosed in February 2005, after the Veteran underwent EMG/NCV testing that ruled out generalized neuropathy and confirmed by repeat stimulation that the Veteran had myasthenia gravis. The examiner found no symptoms of peripheral neuropathy, or any sensory deficits in the hands or feet. The examiner explained that treatment for myasthenia gravis did have the effect of aggravating the Veteran's diabetes; however, the examiner further explained that the Veteran's myasthenia gravis was not caused by his diabetes. A June 2005 VA neurology clinic note showed he was diagnosed in February with seropositive myasthenia gravis. In July 2005, he was noted to have increased diplopia symptoms, which were attributed to myasthenia gravis. In June 2005, VA treatment providers noted that the Veteran's glucose levels increased after his diagnosis with myasthenia gravis. In September 2005, it was determined that the Veteran's medications for myasthenia gravis were aggravating his renal functions, so his prescription quantities were changed. In September 2006, VA treatment records again noted that the treatment for myasthenia gravis was affecting the Veteran's kidney functioning. The Veteran provided internet articles from the Mayo Clinic, including an article on myasthenia gravis. The article noted that myasthenia gravis was characterized by weakness and rapid fatigue of any of the muscles under voluntary control. Specifically, the article noted that myasthenia gravis symptoms could include ptosis (drooping of one or both eyelids), diplopia, and weakness of the arms and legs. Notably, the Veteran underwent surgery to correct ptosis, and one symptom which lead to his diagnosis of myasthenia gravis was weakened extremities. The article noted that with myasthenia gravis, the immune system produces antibodies that block or destroy many of your muscles' receptor sites for neurotransmitter called acetycholine. Thus, it is "believed" that the thymus gland may trigger or maintain the production of these antibodies. This can be caused by an abnormally large thymus or tumors of the thymus. August 2006 and February 2009 VA treatment records noted the Veteran had not developed diabetic retinopathy. He was noted to have myasthenia gravis "with worst diplopia," but no background diabetic retinopathy in March 2007. A March 2009 VA general medical examiner found that the Veteran's diplopia on superior gaze was secondary to his myasthenia gravis. The examiner noted that myasthenia gravis and diplopia are not complications of diabetes mellitus. The examiner also found that there was no relationship between myasthenia gravis and diabetes mellitus, and that the Veteran's myasthenia gravis was not worsened or increased due to his diabetes mellitus. The examination focused on the impact of the Veteran's service-connected disabilities on his ability to maintain employment, and does not contain rationales for the examiner's statements that diplopia and myasthenia gravis are unrelated to the Veteran's diabetes mellitus. By July 2010, the Veteran's myasthenia gravis was in complete remission and he no longer suffered from diplopia. Unfortunately, in April 2011 his myasthenia gravis returned with onset horizontal diplopia. He was noted again to have diabetes mellitus without retinopathy. At his January 2011 Board hearing the Veteran offered a history of myasthenia gravis, as well as diplopia, outlined herein above. He testified that "a doctor here" a "Mr. Daschle" "tried to get it passed back then [in the 1980s]" that myasthenia gravis was caused by exposure to herbicides. He also testified that he developed diplopia about 8 years after he was diagnosed with diabetes, and that he was initially told that his diplopia was related to his diabetes and hypertension. He denied having double vision during service or within one year of discharge from service. He further stated that while his doctors initially thought that his diplopia was attributable to diabetes, they later "leaned toward the myasthenia." He testified that there was no way for him to know if his myasthenia gravis or his diabetes mellitus caused his diplopia. In June 2011, the Veteran was afforded a VA eye examination. He reported intermittent double vision, which began in December 2004. He reported seeking treatment in February 2005, and that an MRI was normal. VA neurology then performed a tensilon test that was positive, and an EMG was consistent with myasthenia gravis. He reported that since onset, his diplopia has been intermittent with remissions. He was diagnosed with diabetes mellitus in 2000. The examiner diagnosed myasthenia gravis with a complication of diplopia, and diabetes mellitus without retinopathy. The examiner opined that diplopia was not caused by or a result of the veteran's diabetes mellitus. The examiner noted that the Veteran experienced diplopia when he was diagnosed with myasthenia gravis, and that with treatment for myasthenia gravis his diplopia resolves. The examiner noted that the physical examination of the Veteran did not reveal diabetic retinopathy. In November 2012, the Board requested a Veteran's Health Administration specialist's opinion regarding the etiology of the Veteran's myasthenia gravis. In December 2012, the Lead Neurologist at the Wilmington VAMC opined that the Veteran's myasthenia gravis was not likely to be the result of disease or injury incurred or aggravated during active service, to specifically include his exposure to herbicides. The neurologist cited literature which noted that myasthenia gravis is an autoimmune disorder which is commonly found in individuals with abnormalities of the thymus gland, and that there is additional evidence that the Epstein-Barr virus and genetic factors play a role in the development of myasthenia gravis. The examiner also cited to Veterans and Agent Orange: Update 2010, from the Institute of Medicine of the National Academies, which included a finding that "the spectrum of occupational exposure findings does not provide a consistent or clear picture of alterations in immune measures that could be extrapolated to an increased risk of a single disease or even broader category of diseases...the present committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to chemicals of interest and specific...autoimmune diseases." The neurologist also cited to the Veterans and Agent Orange: Update 1998, which noted that "studies suggest that short-term immunological changes may occur following exposure to phenoxy herbicides in an agricultural setting," but the changes are short-lived, and return to normal within 50 to 70 days of exposure. "No evidence is available to associate defects in the immune response with Agent Orange exposure." The Agent Orange Act of 1991 requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C.A. § 1116(b) and (c). In September 2011, the NAS issued the above cited Veterans and Agent Orange: Update 2010 (Update 2010). The Secretary determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for immune system disorders (immune suppression, allergy and autoimmnunity). Here, the evidence of record does not support that the Veteran developed myasthenia gravis to a compensable degree during service or within one year of service. His available service treatment records do not include a diagnosis of myasthenia gravis or complaints of symptoms later associated with myasthenia gravis, to include diplopia. The evidence of records strongly supports that the Veteran was not diagnosed with myasthenia gravis until February 2005, and his own statements concur that he did not develop symptoms which were attributed to myasthenia gravis until December 2004. Thus, although myasthenia gravis is listed as a chronic disease which may be presumptively attributed to service if it is diagnosed with compensable symptoms within one year of discharge, the facts of this case do not support a presumptive service connection for a chronic disease. Similarly, although the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides, myasthenia gravis is not a disorder recognized by the Secretary as presumptively related to herbicide exposure. Indeed, the Secretary conferred with the NAS reports and found that presumptive service connection based on herbicide exposure is not warranted for autoimmune disorders. Thus, the record reveals that service connection for myasthenia gravis is not warranted under either chronic or herbicide exposure presumptive service connection regulations. In addition, the Board finds that direct service connection for myasthenia gravis is likewise not warranted. There is no indication of treatment for symptoms of myasthenia gravis in service or for almost 40 years after service. There are no medical opinions of record that relate the Veteran's myasthenia gravis to his service or to any of his service-connected disorders. The information provided by the Veteran in the Mayo clinic internet article, and the information provided by the December 2012 VHA opinion both indicate that myasthenia gravis is commonly associated with abnormally large thymus glands. The December 2012 VHA neurologist also opined that the Veteran's myasthenia gravis was not likely related to his herbicide exposure in service. Citing to medical studies, the neurologist indicated that herbicide exposure could result in immunological changes immediately following exposure, but that such changes would last no longer than 70 days, and that onset nearly 40 years after service did not support that the myasthenia gravis was related to in-service herbicide exposure. Regarding the Veteran's diplopia, the Board notes that the Veteran's diagnosed diplopia was initially thought to be attributable to his diabetes and hypertension (both service-connected disorders). It is telling in this regard, however, that following extensive testing at the VAMC following complaints of diplopia and weakness of the extremities, that a firm diagnosis of myasthenia gravis was rendered and that diplopia is clearly determined to be a consequence of this condition. Indeed, the Veteran himself has acknowledged that his doctors have "leaned toward the myasthenia" as the cause of his diplopia. Concurring with VA treatment providers opinions that the Veteran's diplopia was a symptom of his myasthenia gravis, the June 2011 VA eye examiner opined that the Veteran's diplopia was not due to, related or, or aggravated by his diabetes mellitus. In fact, treatment records indicate that the medication the Veteran was on to treat his myasthenia gravis and diplopia had a negative impact on his renal functions. Accordingly, the evidence is against the claim of entitlement to service connection for diplopia, to include as due to diabetes mellitus. The Board notes that the Veteran expressly believes that he developed myasthenia gravis as a result of exposure to herbicides in service. The Veteran has also noted that he believes his diplopia could be related to his diabetes and hypertension. Notwithstanding the Veteran's own beliefs, as detailed above, the Board is unable to attach probative weight to such assertions. The Board acknowledges that, in certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In particular, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). These examples notwithstanding, a lay person is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Here, the etiology of myasthenia gravis is a complex medical question, and other than associations with the thymus gland, the Epstien-Barr virus, genetic factors and T-lymphocytes, the medical treatises cited in the case do not include a clear cause for the Veteran's development of myasthenia gravis. The medical opinion of the December 2012 neurologist is clear that his myasthenia gravis is not related to exposure to herbicides, and medical studies were discussed to support that determination. Additionally, regarding the Veteran's diplopia, VA treatment providers initially suspected the Veteran's diabetes and hypertension caused his diplopia. After treatment and testing, however, the VA treatment providers quickly determined that the Veteran's diplopia was a symptom of myasthenia gravis. The Veteran acknowledged during his Board hearing that his physician's later determined that his diplopia was due to his myasthenia gravis, and that he (as a lay person) had no way of knowing if his diplopia was due to his service-connected disabilities or his myasthenia gravis. Based on the foregoing, the Board finds that service connection for myasthenia gravis and diplopia may not be granted. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the appellant's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Increased Rating-Laws and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. To evaluate the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3. In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7. The Veteran's appeal for increased evaluations stems from a rating decision that granted service connection and assigned the initial noncompensable rating. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings") and dissatisfaction with determinations on later-filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time service connection is awarded until a final decision is made. Id. Increased Rating-Factual Background and analysis Pursuant to the rating schedule, diabetes is evaluated as follows: requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet (20 percent); requiring insulin, restricted diet, and regulation of activities (40 percent); 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 (60 percent); and 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 (100 percent). 38 C.F.R. § 4.119 , Diagnostic Code 7913. The Veteran filed a claim of entitlement to diabetes mellitus in May 2001. During a November 2001 Agent Orange registry, the Veteran was noted to be on oral medication for his diabetes mellitus. A May 2003 VA diabetes mellitus examination noted that the Veteran had been treated with oral medications since he was diagnosed in early 2000, and that he had good control of his diabetes mellitus. A June 2005 VA diabetes mellitus examination noted the Veteran's diabetes mellitus was under fair control. It was noted that his diabetes was difficult to control while he was on medications for his recently diagnosed myasthenia gravis. Even with this increase, his diabetes was under control with oral medications. He had no episodes of hypoglycemic reactions or ketoacidosis. He was told to follow a restrictive diet due to his diabetes mellitus. He was not told to regulate or restrict his activities although he was unable to engage in strenuous activities. A December 2005 VA treatment record noted the Veteran had fair compliance with his restricted diet. He was directed to get a consultation from physical therapy for an exercise program. He was noted to have weak muscles, with difficulty walking due to his myasthenia gravis. An April 2007 VA diabetes mellitus examination noted that the Veteran's diabetes mellitus was treated with oral medication, insulin, and a restricted diet. He was also noted to need to restrict his strenuous activity because he "must monitor blood sugar levels in relation to physical activity; must coordinate meals to blood sugar levels." He had no history of hospitalizations for his diabetes mellitus, to include hospitalization for episodes of hypoglycemic reactions or ketoacidosis. He was also noted to have erectile dysfunction. In July 2007, the Veteran's VA treating physician for his renal insufficiency provided a statement that his diabetes mellitus required insulin, restricted diet, and regulation of activities. The physician did not provide information regarding the regulation of activities even though the worksheet he signed requested this information. An August 2007 VA treatment note, from the Veteran's primary care physician noted that the Veteran wanted a statement that his diabetes mellitus required restriction of activities. His treating physician refused to provide such a statement, and noted "he has no restrictions on his activities related to his diabetes; in fact, [she] wanted him to increase his activity/walking as much as possible to improve his insulin resistance. In January 2008, the Veteran called the VA to report an episode of hypoglycemia for two days. A March 2009 VA diabetes mellitus examination noted the Veteran was treated with oral medication and insulin, but not with restricted diet or activities. A July 2010 VA treatment record noted that he was given physical therapy exercises to perform, including bike riding and stretching. He was encouraged to ambulate as tolerated as well. A June 2011 VA diabetes mellitus examination noted the Veteran was treated with oral medications and insulin, but that he was not on a restricted diet or regulation of activities. During his Board hearing, the Veteran stated that his diabetes restricts his activities. He then described being unable to raise his arms over his head, not being able to walk, and becoming out of breath and shaking with activity. He stated he has never been hospitalized for his diabetes. In June 2012, the Veteran was again afforded a VA diabetes mellitus examination. He was noted to be on oral medications and insulin to control his diabetes. He was noted to not have regulations on his activities as part of the medical management of his diabetes mellitus. He reported he visited his diabetic care provider less than twice a month, and he denied any episodes of hypoglycemia or ketoacidosis in the prior 12 months. Here, the record contains conflicting opinion regarding whether the Veteran's activities need to be regulated due to his diabetes mellitus. In assessing the service connection claim based on the available evidence of record, the Board finds that the opinion of the August 2007 treating physician and majority of the VA examiners are more probative than the July 2007 statement of the VA renal physician and the 2007 VA examiner. Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has recently stressed that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Veteran's primary care physician, who generally treats the Veteran's diabetes mellitus, argued in her August 2007 treatment record that she does not feel the Veteran's activities need to be regulated due to his diabetes mellitus, and that, on the contrary, she attempts to encourage increased activity from the Veteran to improve his insulin resistance. Additional treatment records contain records of encouragement for increased activity/ambulation/exercise. Another VA physician, who treated the Veteran for his renal insufficiency, provided a signed form which indicated the Veteran had restriction of activities due to his diabetes mellitus, but the physician failed to complete the form by indicating what activities were restricted. While the majority of the VA examiners found that the Veteran's diabetes mellitus did not require restriction of activities, the 2007 VA examiner noted that the Veteran "must monitor blood sugar levels in relation to physical activity; must coordinate meals to blood sugar levels." This statement, however, does not note that he must "avoid strenuous activities" as defined in Diagnostic Code 7913, only that he must monitor his blood sugar in relation to physical activities. Significantly, the treatment records note that the Veteran has been referred for physical therapy, and encouraged to ambulate as much as tolerable. Based on the foregoing, the Board finds that the more probative evidence of record supports that the Veteran's diabetes mellitus is not manifested by regulation of activities, defined as avoidance of strenuous occupational and recreational activities. As noted above, the Veteran is competent and credible in providing descriptions of his symptoms and experiences. With regard to his regulation of activities, he was correct that the July 2007 physician provided him with paperwork which noted he had regulation of his diet and activities. The Board also finds his descriptions of weakness and shortness of breath to be credible. The Board does not find that the Veteran is competent to attribute these symptoms to his diabetes mellitus. The record is replete with information regarding the effect of his myasthenia gravis on his muscles, and VA physicians noted his weakened extremities were symptoms of his nonservice-connected myasthenia gravis. Additionally, treatment records have included possible diagnoses of emphysema and chronic obstructive pulmonary disease. While the Veteran suffers from these physical limitations, the record shows that his myasthenia gravis is a causative factor in his muscle weakness, and the physician who treats his diabetes argued that he should increase his activities. As such, the Board finds that the Veteran's diabetes mellitus does not manifest in regulation of activities, and thus the next higher evaluation of 40 percent is not warranted during the pendency of this appeal. Similarly, the evidence does not show, and the Veteran has denied, that his diabetes mellitus requires hospitalizations or frequent visits with his diabetic care provider, so ratings in excess of 20 percent are not warranted. Additionally, the 20 percent rating is assigned for diabetes mellitus with erectile dysfunction. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 provides that for rating diabetes mellitus, compensable complications will be separately evaluated 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. Currently, the Veteran's erectile dysfunction is considered noncompensable and thus it is considered as part of the diabetic process under Diagnostic Code 7913. Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. Thus, two distinct criteria are required for a compensable rating; loss of erectile power and deformity of the penis. During the June 2011 VA examination, the examiner noted that the penis was "at present" normal in appearance in a non-erectile state, but that the Veteran had a history of Peyronie's disease in the past. The March 2009 VA diabetes mellitus examination noted the Veteran had erectile dysfunction but a normal penis examination. During the July 2007 VA general medical examination the Veteran noted that he had begun to experience erectile dysfunction. His genitourinary examination was normal, and examination of the penis was normal. The July 2005 VA diabetes mellitus examination did not address erectile dysfunction. During a June 2003 VA diabetes mellitus examination he denied symptoms of erectile dysfunction. In January 2002, the Veteran was diagnosed with Peyronie's disease, and noted to have developed a penile curvature of 45 degrees in the prior year. He underwent numerous injections in 2002 in an attempt to correct the curvature. The record reflects that the Veteran was treated for a curvature to his penis in 2002, however, in 2003 he denied erectile dysfunction. In 2007, he reported erectile dysfunction, but the examination of his penis was normal. Evaluations of his penis in 2011 and 2012 were also noted to be normal. As such, the evidence does not reveal that the Veteran suffered from a penis deformity during the period of consideration in this appeal, and thus he never met both aspects of the criteria at the same time. As such, a separate compensable evaluation for erectile dysfunction is not warranted. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate in regards to both the Veteran's diabetes mellitus and his ED. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, the rating criteria for diabetes mellitus and ED reasonably describe the Veteran's disability levels and symptomatologies, and the criteria provides for higher evaluations. Additionally, the Veteran is separately service connected for diabetic neuropathy, and the evidence reveals that he does not suffer from diabetic retinopathy. The Veteran's complaints of symptoms of dyspnea and weakened arms are not attributed to his diabetes, and his weakened extremities are attributed to his nonservice-connected myasthenia gravis. Thus, as the Veteran's disability pictures are contemplated by the rating schedules, the assigned schedular evaluations are adequate, and referral for extraschedular evaluation is not required. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19. In November 2006, the Veteran filed a formal claim for TDIU. He indicated he worked in construction from 2000 to February 2005 and that he had to quit work due to his diabetes and hypertension, and that he was unable to work due to his "physical disabilities." SSA records include a grant of SSA disability benefits due to myasthenia gravis, and a finding that the Veteran became disabled on February 1, 2005. During a July 2005 VA diabetes mellitus examination the Veteran reported that he was off work from his own trucking firm since his diagnosis of myasthenia gravis. His diabetes mellitus was noted to not have any significant effects on his usual occupation. In February 2007, the Veteran was afforded multiple VA examinations. The examiner found that the Veteran's diabetes mellitus had significant effects on his usual occupation. The examiner noted that diabetes mellitus would have a moderate affect on physical employment and a mild effect on sedentary employment. The examiner made identical findings regarding the Veteran's hypertension. In an April 2007 rating decision, the RO denied entitlement to TDIU. At the time, the Veteran did not meet the percentage requirements under 38 C.F.R. § 4.16(a). In a September 2008 rating decision, the Veteran was granted service connection for sleep apnea with an initial rating of 50 percent, effective February 28, 2008. A March 2009 general medical VA examination noted that the Veteran's diabetes mellitus would have a mild impact on his ability to perform sedentary work, and a moderate impact on his ability to perform physical work. His sleep apnea and renal insufficiency both were noted to have a mild impact on his ability to perform sedentary or physical work. His hypertension and erectile dysfunction were noted to have no negative impact on his ability to work. The examiner did not opine as to the combined impact of the Veteran's service-connected disabilities. In May 2009, the RO again denied the Veteran's claim of entitlement to TDIU. Although he met the basic percentage requirements, the RO found that the evidence did not support that his service-connected disabilities rendered him unemployable, and that he could maintain sedentary employment. The RO found that the Veteran was limitations in performing sedentary and physical employment were due to his nonservice-connected diplopia and myasthenia gravis. In a July 2009 rating decision, the RO granted a 60 percent rating for renal insufficiency with hypertension, effective July 31, 2007. In an April 2010 rating decision, the RO found that the Veteran was entitled to a 10 percent for hypertension, effective May 8, 2001, and a rating of 60 percent for renal insufficiency, effective October 24, 2006. He was also granted entitlement to service connection for allergic rhinitis, and left shoulder degenerative joint disease, both noncompensably rated, effective June 8, 2009. This provided him with a combined rating of 70 percent, effective October 24, 2006. In a May 2012 rating decision, the Appeals Management Center, granted entitlement to diabetic neuropathy of all four extremities, 10 percent each, effective Jun 16, 2011. In June 2012, the Veteran was afforded a VA TDIU examination. The examiner noted "although the greatest impairments with reference to his veteran are likely his myasthenia gravis and neck conditions, the combination of all of the Veteran's service-connected conditions would almost certainly render him unable to secure and maintain substantially gainful employment of all kinds. The 'total degree' of impairment would include the additive effects of fatigability as related to diabetes mellitus, kidney disease, peripheral neuropathy and sleep apnea. It is unlikely the Veteran could complete an entire day's employment on a regular basis regardless if sedentary or physical in nature due to these symptoms. Based on the most recent VA examination, the record clearly shows that the Veteran cannot obtain and maintain employment due to his fatigability from several of his service-connected disabilities. Additionally, his work history has included mostly manual labor-type employment which would be negatively impacted by his diabetes mellitus and peripheral neuropathy. As the examiner has indicated that even sedentary employment is hindered by some of his service-connected disabilities, the Board does not believe that the sedentary employment would be easily obtainable, nor would attempts at part-time employment result in anything greater than marginal employment. As such, the Board finds that the Veteran is entitled to TDIU. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for myasthenia gravis, to include as a result of exposure to herbicides, is denied. Entitlement to service connection for diplopia, to include as due to diabetes mellitus and hypertension, is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied. Entitlement to TDIU is granted. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs