Citation Nr: 1334822 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-40 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus. 2. Entitlement to total disability based on individual unemployability (TDIU) prior to January 28, 2012, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. Here, the Veteran filed a claim for an increased rating for his diabetes mellitus in December 2008, and in January 2009 noted that his hypoglycemic reactions restricted his ability to travel to a job, and so he was seeking total disability (100 percent). In an August 2013 rating decision, the RO granted entitlement to TDIU, effective January 28, 2012. Thus, the issue of entitlement to TDIU prior to January 28, 2012 must still be addressed. FINDINGS OF FACT 1. The Veteran's diabetes mellitus is managed by insulin and restricted diet; but is not managed by regulation of activities or manifested by episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider. 2. Prior to January 28, 2012, the Veteran did not meet the preliminary schedular criteria for TDIU, and his service-connected disabilities did not render him unemployable CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 2. Neither the criteria for a schedular TDIU nor referral for extraschedular consideration for TDIU are met prior to January 28, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Such notice was provided in January 2009, prior to the rating decision on appeal. The letter included notice regarding how disability evaluations and effective dates are assigned. The Veteran was not specifically provided notice regarding the evidence needed to satisfy a TDIU claim, as the claim arose through his increased rating claim according to Rice. However, the Veteran provided statements which revealed he had actual knowledge of the information needed to substantiate a claim for TDIU, including statements regarding the impact of his diabetes mellitus on his employability. The Veteran was also represented by a national service organization throughout his appeal. Thus, VA's duty to notify has been satisfied with respect to the issues on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. All identified and available VA and private medical records pertinent to the claims on appeal are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any outstanding records that are relevant to his claims. The Veteran was also afforded two VA examinations relevant to the claims decided herein. 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 the VA examinations obtained in this case are adequate, as they contain a recitation of the Veteran's complaints and symptomatology and fully address the rating criteria that are relevant to rating the disabilities in this case. The examination reports also include functional impact of the Veteran's diabetes mellitus and information on its occupational effects. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Diabetes Mellitus Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's diabetes mellitus is rated under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. Under those criteria, a 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of actives with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned 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. Note 1 indicates that VA is to evaluate compensable complications of diabetes 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. The Veteran filed for an increased rating for his service-connected diabetes mellitus in December 2008. An April 2006 VA treatment record noted the Veteran was on Humulin N, 17 units in the evening, and Lispro Human insulin 5 units in the morning, 8 units at lunch, and 12 units at dinner, with 4 to 6 units at bedtime. He was also given a Glucagon kit for severe hypoglycemia, as needed. A private treatment record from April 2007 noted the Veteran reported he had been "great." He recently stopped running due to heel pain and a diagnosis of plantar fasciitis. He was noted to have quite a few high blood sugars in the 200s. He was taking Novolog at bedtime since he snacked at bedtime. He provided very few food records to his providers, but stated he had been unable to control his eating. Prior records from 2004 to 2007 indicated that he frequently did not provide his care providers with food logs. He had no symptoms of peripheral neuropathy. He was on Cialis for erectile dysfunction. He was working, but "slowing down," and hoping to retire in two years. He was noted to have a tiny stable amount of retinopathy. In April 2008, the Veteran reported to private care providers that he was doing "well, with no complaints." He gained a lot of weight and was beginning a diet again. He thought his blood sugar had been "fairly good." The private care provider noted that 20 to 30 percent of his blood sugar readings were fewer than 70. He had recently visited his ophthalmologist, and he reported "no changes," but had non-proliferative diabetic retinopathy in the past. He had no symptoms of peripheral neuropathy. He was instructed to "stop covering at bedtime with Humalog (an insulin analogue)!" A June 2004 private treatment record noted the Veteran "tends to stack doses" of insulin. In February 2009, the Veteran was afforded a VA diabetes mellitus examination. He reported using 20 units of Humulin insulin at night plus a sliding scale Humolog insulin. He reported hypoglycemia on average every one to two weeks. He also experienced syncopal episodes associated with hypoglycemia approximately twice a year treated in emergency rooms. He also reported a history of a serious motor vehicle accident secondary to hypoglycemia six to seven years prior. He stated that as a consequence of the motor vehicle accident, he rarely drives, and it has restricted his employment. He endorsed paresthesias involving his hands for the past ten years. On physical examination, his posterior tibial pulses were 1+, and he did not have any atrophic skin changes over his lower extremities. He was diagnosed with diabetes mellitus and erectile dysfunction, but was not diagnosed with neuropathy. In an April 2009 rating decision, the Veteran was granted an increased rating of 40 percent for diabetes mellitus, effective December 11, 2008 (the date of his claim). He was also granted entitlement to special monthly compensation based on the loss of use of a creative organ, effective December 11, 2008. The Veteran appealed his diabetes mellitus rating, and stated that he wanted a 60 percent rating. He reported that he used 8 shots of insulin daily, and that he was on a restricted diet and his activities were regulated. He reported monthly episodes of hypoglycemia, which rendered him unable to drive. In November 2009, the Veteran provided a statement along with his substantive appeal. He reported that if he misjudges the amount of insulin he should take he may become "unconscious without warning." He stated this happened "a few years ago" when he took too much insulin, and was involved in a head-on collision after going out to pick up pizza. He awoke in the hospital three days later. He stated he had no warning, and he did not remember the accident. He stated that he frequently injures himself (presumably referring to injuries due to hypoglycemic episodes), and so now he "rarely drives" and that he drives only "short distances." He also stated he had "not worked since 2002 and [did] not anticipate working in the future." A September 2012 VA treatment record noted that the Veteran did not have diabetic retinopathy or nephropathy. He was involved in a motor vehicle accident in 1997 due to low blood sugar. He reported an uneventful year and no new complications. He reported his blood sugars were in the low 100s. He also reported that he ran 25 miles a week and rode an outdoor bike 150 miles a week. In May 2013, the Veteran was afforded another VA diabetes mellitus examination. The examiner noted his diabetes was managed by restricted diet and five to eight injections per day. He did not require regulation of activities as part of his management. He reported visiting his diabetic care provider less than twice a month for episodes of ketoacidosis or hypoglycemic reactions. He also had no periods of ketoacidosis or hypoglycemia which required hospitalization in the prior 12 months. He was noted to have erectile dysfunction as a complication of diabetes mellitus. He reported that his diabetes mellitus affected his ability to work because he has suffered episodes of hypoglycemia while driving in which his wife administered glucose or he had to take oral gel packs. He had not been hospitalized for hypoglycemia. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board finds the Veteran to be less than credible in reporting the severity of his symptoms and his medical treatment. The Veteran reported to the 2009 VA examiner that he is hospitalized roughly twice a year due to hypoglycemic episodes. However, there is no medical evidence to support that the Veteran has been hospitalized for a hypoglycemic episode from 2004 to 2012. He has reported that after his motor vehicle accident that he was no longer able to drive. However, he also stated that he sometimes drives, even though he has no idea when he may become unconscious, and that he only drives short distances. Furthermore, VA treatment records indicate that the Veteran's motor vehicle accident occurred in 1997, more than ten years prior to his current claim for an increased rating, even though he has attempted to make the accident appear more recent in statements (it occurred "a few years ago"). Regarding his employment, he reported to the VA that he last worked in 2002; however, he reported to his private treatment provider in 2007 that he was still working but was thinking about retiring in two years. He reports "severe" diabetes to the VA, but tells his private care provider that he is doing "great." Lastly, he reported to the VA that he has regulation of activities due to his diabetes mellitus, but then reported to treatment care providers that he runs and bikes multiple miles per week. The Board finds that the Veteran's diabetes mellitus symptoms more nearly approximate the criteria required for a 40 percent rating. The record shows that the Veteran's diabetes is managed with diet and five to eight insulin injections per day. His diabetes does not require regulations of his activities, which is apparent both by the Veteran's physical activity level, but is also not shown in his private treatment records which encouraged diet and exercise. As his diabetes does not require regulation of activities, he does not meet the criteria for his currently assigned 40 percent rating. Additionally, while the Veteran has reported monthly episodes of hypoglycemic reactions, he has not required any hospitalizations during the period on appeal. The VA requested that the Veteran provide releases for all non-VA care providers, and the claims file contains private treatment records from the singular release provided by the Veteran. He has not provided releases for any additional private treatment records, and the records in the claims file do not support a finding of hospitalizations for hypoglycemia. He also did not report hospitalizations to his private diabetic care provider or to the 2013 VA examiner. Private care records indicate that the Veteran does not use his insulin as instructed, which causes his low blood sugar readings. The private diabetic care provider records show that he is seen every six months to a year. The Veteran does have erectile dysfunction as a complication of his diabetes mellitus, for which he receives special monthly compensation. According to the Veteran's report to his private care provider, he was found to have a "tiny stable amount of retinopathy." VA examinations and 2012 VA treatment records indicate that the Veteran does not have retinopathy. The available treatment records do not include a positive diagnosis of retinopathy. However, the Board will assume that the Veteran's statement that he was diagnosed with a "tiny stable amount of retinopathy" is correct. During the course of this appeal, VA revised the criteria for rating eye disabilities, effective December 10, 2008. 73 Fed. Reg. 66,543 (2008) (codified at 38 C.F.R. §§ 4.75-4.79). The Veteran filed his claim on December 11, 2008, so the new criteria apply. The rating criteria for retinopathy is addressed by 38 C.F.R. § 4.79, Diagnostic Code 6006, which provides a compensable rating for incapacitating episodes of retinopathy having a total duration of at least one week, but less than two weeks in the prior twelve months. There is no indication in the record that the Veteran's "tiny stable amount of retinopathy" has caused any incapacitating episodes. As such, the Board notes his retinopathy is a noncompensable complication to be considered as part of the diabetic process under Diagnostic Code 7913. As such, the Veteran has a complication of diabetes that is not compensable if separately evaluated; however, he does not meet the rest of the criteria for a 60 percent rating, and does not meet the criteria for a 40 percent rating because he does not have regulation of his activities. The Board notes that the Veteran's symptoms fall between the rating criteria for a 20 percent rating and a 60 percent. The separately noncompensable complication of diabetes, retinopathy, has been noted to be tiny and stable. The record has also indicated it is not a current complication. Thus the Board finds that his symptoms more nearly approximate a lower rating, and finds that a rating in excess of 40 percent is not warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. Here, the Veteran's symptoms of diabetes mellitus are specifically addressed by Diagnostic Code 7913. Although his symptoms fall between rating criteria, there are additional criteria available for increased ratings. Additional complications of his diabetes mellitus are also addressed by Note (1), and, in the case of his erectile dysfunction, have already been separately addressed by the RO. The Veteran contends that his diabetes mellitus adversely affected his employment; however, the Veteran is not credible in reporting when his employment ended or the impact on his driving (as explained above). His use of insulin five to eight times a day is addressed in his 40 percent rating, and the record reflects that the Veteran has not been hospitalized in during the entire appeals period. As the rating criteria specifically address the Veteran's disability level and symptomatologies, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Therefore, referral for extraschedular evaluation is not required. TDIU prior to January 28, 2012 The Veteran seeks a total disability rating based on individual unemployability due to service-connected disabilities. In this regard, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. Total disability will be considered to exist when there is presented any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16. Nevertheless, it is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). In other words, even where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis, may be granted in exceptional cases where the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996); see also Kellar v. Brown, 6 Vet. App. 157, 162 (1994). Prior to January 28, 2012, the Veteran was singularly service-connected for diabetes mellitus, with a rating of 40 percent. Thus, prior to January 28, 2012, the Veteran did not meet the criteria of 38 C.F.R. § 4.16(a) and a grant on a schedular basis for that period is not warranted, and the Board must address whether TDIU is warranted on an extraschedular basis for this period on appeal. Procedurally, the Board is not permitted to consider entitlement to an extraschedular evaluation in the first instance. If the Board determines that the Veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards, then the claim must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service. 38 C.F.R. § 4.16(b). In determining whether a veteran is indeed unemployable, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). As noted above, the Veteran believes that his diabetes mellitus renders him unemployable due to hypoglycemic episodes. He has stated, conversely, that he is unable to drive at all, that his driving is restricted, and that while driving his wife has had to provide him with glucose. He argues that his inability to drive due to his diabetes mellitus renders him unemployable. Regarding his employment in November 2009, the Veteran reported to VA that he had not been employed since 2002. In April 2007, the Veteran reported to his private care provider that he was "slowing down at work and hop[ing] to retire in 2 years." During his May 2013 VA examination, the Veteran reported he last worked in 2005, as an accountant. The May 2013 VA examiner found that the Veteran had no restriction from sedentary work environments, as long as he had reasonable accommodation (breaks to treat his diabetes mellitus). The examiner found that the Veteran should not have employment where he was required to operate a vehicle, machinery, or that required continuous focus for safety reasons due to his episodic hypoglycemia. According to the June 2013 VA PTSD examination, the Veteran completed a bachelor's degree in 1975 and a master's degree in 1978 in accounting. He worked for the IRS from 1979 to 1985, and then for the Department of Labor for six years. He then worked for the National Association of Government Employees doing accounting until 2005. He reported he was fired because he did not get along with the new management. He did not look for more work after 2005, and reported that he had trouble throughout his career with arguing with bosses. He also reported his co-workers did not like to be around him because "he was trouble." In August 2013, the VA examiner noted that the Veteran would have trouble with sedentary or physical employment where there was significant interaction with the public or co-workers. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Board notes, again, that the Veteran has not been credible in providing information to the VA. There are contradictory statements regarding when the Veteran was last employed. Although he indicated he last worked in 2002 and 2005, it appears from the record that he was likely last employed in at least 2007 because he reported to his private care provider that he was still working. Van Meter v. Brown, 4 Vet. App. 477, 479 (1993) states the Board is to take into account the Veteran's employment and educational background. The Veteran has a higher education, including a master's degree in accounting. His employment history post-service, as reported to the June 2013 VA PTSD examiner, was exclusively as an accountant/auditor. There is scant other information regarding employment in the file and no information that shows a factor that the Veteran's case is "outside the norm." The evidence reveals that the Veteran's diabetes mellitus did not limit his sedentary employment, and that the Veteran's education and employment history supported that he could maintain sedentary employment. The record also indicated that the Veteran blamed his PTSD with interfering with his employment as an accountant, and the VA examiner agreed. As the evidence of record fails to show that the Veteran's service-connected diabetes mellitus rendered him unemployable prior to January 28, 2012, referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service is not warranted. As for extraschedular consideration under 38 C.F.R. § 3.321, it appears to be inapplicable, as this regulation covers marked interference with employment and not unemployability; these are two completely different standards. Thun v. Peake, 22 Vet. App. 111, 117 (2008). ORDER Entitlement to a rating in excess of 40 percent for diabetes mellitus is denied. Entitlement to a total disability evaluation due to individual unemployability (TDIU) for the period prior to January 28, 2012 is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs