Citation Nr: 1337149 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 05-33 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating greater than 30 percent for service-connected hypertension. 2. Entitlement to an initial separate disability rating for service-connected renal insufficiency. 3. Entitlement to an initial disability rating greater than 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction and bilateral retinopathy. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 17, 2009. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from February 1970 to December 1973. In addition, although no DD214 is of file, a review of the Veteran's service treatment records shows that he reenlisted in December 1973 and had additional service until December 1978, which is confirmed by the Veteran's report of his active service on his original VA Form 21-526. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions from March and August of 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2008, the Board remanded the appealed issues in order that the Veteran may be provided with the Travel Board hearing he had requested. In February 2009 and again in September 2011, the Veteran submitted statements withdrawing his request for a Board hearing. Consequently, no further efforts are needed to provide him with a Board hearing. During the period of time that the Veteran's claims were on remand, additional development was conducted on his appealed claims. In a rating decision issued in May 2013, the RO granted service connection for renal insufficiency secondary to hypertension, evaluated as 100 percent disabling effective April 17, 2009, the date the evidence shows the Veteran started on dialysis. Despite the grant of service connection in this rating decision, however, the Board finds that service connection for renal insufficiency had already been granted in the original rating decision issued in March 2004 when the RO granted service connection for hypertension with renal insufficiency and rated them together as 30 percent disabling. Consequently, the May 2013 rating decision essentially granted a separate disability rating for the Veteran's renal insufficiency at 100 percent and retained the 30 percent disability rating for the service-connected hypertension. The Board finds, therefore, that the issue of a separate disability rating for renal insufficiency prior to April 17, 2009, continues to be on appeal and is an issue before the Board. The issues on the title page of this decision have been changed to reflect the March 2013 RO's rating decision. The Board further notes that, as the Veteran was awarded a 100 percent schedular rating effective April 17, 2009, that the issue of entitlement to a TDIU thereafter is moot. Consequently, the issue has been recharacterized as listed on the title page of this decision. FINDINGS OF FACT 1. The Veteran's service-connected hypertension has not been productive of a diastolic pressure predominantly 120 or more. 2. Prior to January 3, 2008, the Veteran's renal insufficiency was not productive of constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. 3. From January 3, 2008 to September 17, 2009, the Veteran's renal insufficiency was productive of constant albuminuria with some edema. 4. As of September 18, 2008, the Veteran's renal insufficiency was productive of persistent edema and albuminuria with BUN of 41 mg%. 5. The Veteran's diabetes mellitus, type II, has not required the use of insulin or regulation of activities. 6. The Veteran's erectile dysfunction is not productive of penile deformity or atrophy of the testicles warranting a separate compensable disability rating. 7. The Veterans diabetic retinopathy has not caused central visual acuity worse than 20/40 uncorrected distance vision in either eye, impairment of visual fields or other symptoms warranting a separate compensable rating. 8. Each of the Veteran's disabilities does not represent an exceptional disability picture at any time during the appeal period. 9. Prior to April 17, 2009, the Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for service-connected hypertension are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.104, Diagnostic Code 7101 (2013). 2. Prior to January 3, 2008, the criteria for an initial separate disability rating for service-connected renal insufficiency were not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.115a, Diagnostic Code 7541 (2013). 3. From January 3, 2008 to September 17, 2008, the criteria for a 60 percent disability rating, but no higher, for service-connected renal insufficient were met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.115a, Diagnostic Code 7541 (2013). 4. From September 18, 2008, to April 16, 2009, the criteria for an 80 percent disability rating, but no higher, for service-connected renal insufficient were met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.115a, Diagnostic Code 7541 (2013). 5. The criteria for an initial disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.79, Diagnostic Code 6006 (2003); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.115b Diagnostic Codes 7522, 7523, and 4.119 Diagnostic Code 7913 (2013). 6. The criteria for a TDIU rating have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Substantially compliant notice for the TDIU claim was provided in May 2004 and the claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333 (Fed. Cir. 2006); This claims on the other issues arise from the Veteran's disagreement with the initial evaluations following the grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. All efforts have been made to obtain relevant, identified and available evidence. Neither the Veteran nor his representative has identified any available evidence that has not been obtained. The duty to assist includes providing the veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in August 2003, February 2004, July 2004, January 2008 and January 2013. He does not report that the conditions have worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Furthermore, the reports of these examinations essentially are adequate for rating purposes as they reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Hypertension The Veteran contends that his rating for his hypertension should be higher because his hypertension and the medications he takes for it cause him to have increased fatigue and decreased mental alertness. In the March 2004 rating decision, service connection was initially granted and a 30 percent rating assigned for hypertension with renal insufficiency under hyphenated Diagnostic Code 7101-7541. Hypertension was the service-connected disorder and it was rated as if the residual condition was renal involvement, rated as renal dysfunction. 38 C.F.R. § 4.27. The conditions were rated together until the May 2013 rating decision which assigned a separate rating for renal insufficiency. Hypertension is evaluated under Diagnostic Code 7101. Diagnostic Code 7101 provides that hypertensive vascular disease (hypertension and isolated systolic hypertension), warrants a 60 percent rating when diastolic pressure is predominantly 130 or more; a 40 percent rating when diastolic pressure is predominantly 120 or more; a 20 percent rating when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more; and a 10 percent rating when diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or an individual has a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. 38 C.F.R. § 4.104, Code 7101. Note 1 to Diagnostic Code 7101 requires that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Code 7101, Note 1. The blood pressure readings in the medical records of evidence fail to demonstrate that the Veteran's diastolic pressure has been predominantly 120 or greater in order to warrant a disability rating higher than the current 30 percent. The highest diastolic pressure seen in the medical records is 103 on October 21, 2008. Rather, the medical evidence shows it is his systolic pressure that is the problem. Unfortunately, although the medical records show the Veteran had systolic pressures occasionally over 200, they were predominately in the 100s and at times over 160. A systolic pressure predominantly over 200, however, only warrants a 20 percent disability rating under Diagnostic Code 7101. Consequently, the Veteran's blood pressure readings as seen in the medical evidence do not demonstrate that a disability rating higher than 30 percent is warranted. The Veteran has argued that he has had fatigue and decreased mental alertness due to his hypertension and/or medications taken for it. The Board notes, however, that no medical records show that the Veteran's fatigue is related to his service-connected hypertension or to medications he takes therefor. Furthermore, there are no records showing the Veteran has decreased mental alertness due to his hypertension or medications he takes for it. Finally, as for his fatigue, the Board notes that this appears to have been associated with his aortic insufficiency for which service connection has been granted and was originally evaluated as 30 percent. In making that evaluation, the Veteran's fatigue was used to evaluate the service-connected aortic insufficiency. Consequently, the Board cannot use this symptom in evaluating the Veteran's hypertension as such would constitute impermissible pyramiding absence the showing that his fatigue was definitely related to his hypertension or hypertensive medications. See 38 C.F.R. § 4.14. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability. As discussed above, there is a higher rating available under the diagnostic code addressed in this decision, but the Veteran's hypertension is not productive of the manifestations that would warrant the higher rating. Although the Board recognizes the Veteran's reports to VA in support of his claim that he has fatigue and decreased mental alertness because of his hypertension and medications he takes for it, as explained above, the Veteran's fatigue has been related to his service-connected aortic insufficiency rather than his hypertension. Furthermore, the Veteran is not competent as a lay person to provide an opinion as to the cause of his fatigue and decreased mental alertness as such requires medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions). In the present case, there is no medical evidence associating the Veteran's complained of fatigue and decreased mental clarity to his hypertension or medications taken for it. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 30 percent is warranted for the Veteran's service-connected hypertension. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's claim must, therefore, be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Renal Insufficiency As previously acknowledged in the Introduction to this decision, the RO awarded service connection for renal insufficiency in the March 2004 rating decision on appeal; however, rated it with the Veteran's hypertension under the rating criteria for renal dysfunction because such provided the Veteran with the higher disability rating. In a May 2013 rating decision, however, the RO granted a separate 100 percent disability rating for the Veteran's renal insufficiency on the basis that he required dialysis as of April 17, 2009. This decision, however, did not resolve the issue of a separate disability rating for the Veteran's renal insufficiency prior to April 17, 2009. Thus, the issue of a separate disability rating higher than 30 percent for renal insufficiency is still before the Board. The Veteran's renal insufficiency has been rated as renal dysfunction as set forth in 38 C.F.R. § 4.115a. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg% [milligrams per 100 milliliters]; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Renal dysfunction characterized by persistent edema and albuminuria with BUN [blood urea nitrogen] 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent rating. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent rating. Renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101 warrants a 30 percent rating. Renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under Diagnostic Code 7101 is noncompensably disabling. As discussed above, the Veteran's hypertension does not meet the criteria for a 40 percent disability rating. Consequently, that criterion for a 60 percent disability rating for the Veteran's renal insufficiency is not met and need not be discussed further. The early records show the Veteran had constant albuminuria and slightly elevated creatinine, but BUN was within normal range or just slightly elevated (e.g., 21 mg/dL with normal high being 20 mg/dL). There was, however, no evidence of edema or definite decrease in kidney function. Furthermore, there were no complaints of symptoms by the Veteran nor did he receive any treatment for his renal insufficiency. The Board acknowledges that a February 2005 VA treatment record from the Dallas VA Medical Center, at which time the Veteran was being seen for his diabetes mellitus, type II, shows that mild edema in both legs was noted. This treatment record, however, did not indicate a cause of the Veteran's mild edema and no assessment was made relating to renal insufficiency. The Veteran presented with no complaints. Furthermore, subsequent VA treatment records through December 2007 failed to show any complaints or findings of edema of the lower extremities, with some of these records clearly related to evaluation of the Veteran's renal insufficiency. Consequently, the Board finds that the mild edema of the bilateral lower extremities noted in February 2005 was a transient finding as the records do not support a showing that the Veteran had "some edema" for several years thereafter. In January 2008, the Veteran underwent a VA examination for his diabetes mellitus, type II. At that time, the Veteran complained of recent swelling of his legs. The examiner noted on physical examination that the Veteran had 2+ edema of the ankles and feet. Laboratory tests at that time demonstrated that the Veteran's BUN was 25 mg/dL and creatinine was 1.7 mg/dL (high normal was 20 mg/dL and 1.4 mg/dL, respectively). His urine protein was 300 mg/dL, but he had no blood in his urine. His glomerular infiltration rate was 54. The examiner's assessment was that the Veteran's kidney problems were early and had not progressed. The Board, however, finds that, in comparison with previous records, and the VA rating criteria, this VA examination demonstrates a progression in the Veteran's renal insufficiency. The Board notes that the laboratory findings definitely demonstrate an increase in the Veteran's BUN, creatinine and urine protein when compared to prior laboratory tests from January 2005 showing a definite decrease in the Veteran's kidney function. Further evidence of a decrease in functioning is the Veteran's glomerular infiltration rate (also known as the estimated glomerular filtration rate or eGFR). VA treatment records from December 2005 show it was 58 but it was 54 in January 2008. Essentially, the lower the eGFR, the less the kidneys are functioning properly. Furthermore, the Board finds that the January 2008 VA examination is the first definite evidence of the Veteran having edema of the lower extremities as a result of his renal insufficiency. The 2+ edema of the bilateral extremities was specifically associated with the Veteran's renal insufficiency, and the Veteran himself reported that this was a recent occurrence (which is supported by the VA treatment records as they do not show any reports or findings of edema through December 2007 as previously discussed). Subsequent private treatment records do not definitely show reports or findings of edema until September 2008, which note indicates the Veteran had 2 to 3+ edema in the bilateral lower extremities; however, as these records do not actually show a finding one way or another, the Board cannot say that they clearly demonstrate that the Veteran had no edema during that period. Thus, the Board resolves reasonable doubt in the Veteran's benefit that the edema noted in January 2008 and again in September 2008 demonstrates "some edema" as set forth in the criteria for a 60 percent disability rating. Consequently, based upon the fact that the records show the Veteran has constant albuminuria with some edema starting in or around January 2008, as well as definite decrease in kidney functioning in January 2008, when the laboratory test results are compared to the January 2005 laboratory findings, the Board finds that a 60 percent disability rating is warranted for the Veteran's renal dysfunction as of January 3, 2008, the date of the VA examination and laboratory findings demonstrating that the criteria were met. A higher 80 percent disability rating, however, was not met at that time because the evidence did not demonstrate persistent edema, BUN of 40mg% or greater, creatinine of 4mg% or greater, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The January 2008 VA examination report shows the Veteran actually reported gaining weight over the last year and there was no complaints of lethargy or weakness or evidence of anorexia. The Board notes that the examiner did comment that the Veteran was restricted in activities because of his diabetes, the swelling in his legs, and erectile dysfunction, although he also noted that the Veteran reported that he walked half a mile twice a week and then a mile on the weekends without any problem. Thus, the examiner did not really explain what restrictions he meant, except to say that the Veteran's erectile dysfunction caused him severe domestic problems. The Board finds that this alone is not sufficient to meet the criteria for an 80 percent disability rating at that time. The Board does find, however, that the criteria for an 80 percent disability rating were met as of September 18, 2008, the date that laboratory tests showed that the Veteran's BUN was 41 mg/dL. In addition, his urine protein was 273.50 mg/dL. A treatment note dated September 19, 2008, also shows the Veteran had 2 to 3+ edema of the bilateral lower extremities and subsequent treatment records continued to show such edema. Consequently, the Board finds that these treatment records demonstrate that the Veteran's renal insufficiency was productive of persistent edema and albuminuria with a BUN over 40mg%, which is sufficient to meet the criteria for an 80 percent disability rating. A 100 percent disability rating was not warranted at that time, however, because the evidence fails to demonstrate the Veteran's renal insufficiency required regular dialysis or precluded more than sedentary activity from one of the following: persistent edema and albuminuria; BUN more than 80mg%; creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. The Board notes that private hospital treatment records show the Veteran was hospitalized in October 2008 and again in April 2009 due to hypoglycemia, which was determined to be related to a decrease in the Veteran's kidney function. The Veteran's BUN in October 2008, however, was no higher than 50 mg/dL and his creatinine was no higher than 4.6 mg/dL. It was determined that the Veteran had Stage IV kidney disease. In March 2009, laboratory tests showed the Veteran's BUN was 72 mg/dL and creatinine was 6.6 mg/dL, still within the criteria for an 80 percent disability rating. In April 2009, when he was again hospitalized, he was determined to have Stage V kidney disease that required dialysis. He was started on dialysis during this hospitalization on April 17, 2009. The Board acknowledges that private treatment records from November 2008 demonstrate that the Veteran's private physician evaluated the Veteran to have Stage V kidney disease due to his diabetes mellitus, type II, and hypertension and began discussing with him the need for dialysis. The Board finds, however, that dialysis was not "required" as set forth in the criteria for a 100 percent rating, because the Veteran was clearly given an opportunity to go to a dialysis center and check into the different types of dialysis and was given time to determine what he preferred to do. Furthermore, it appears that his BUN and creatinine continued to be below 80mg% and 8mg%, respectively, as indicated in the treatment records. Thus, clearly, dialysis was not deemed "required" until the Veteran's hospitalization in April 2009. Thus, the Board finds that an 80 percent disability rating is warranted from September 18, 2008, until April 16, 2009, the day before the Veteran first received dialysis for his renal insufficiency. Finally, the Board has considered whether referral for an extraschedular rating is warranted. Prior to January 2008, the Veteran's renal insufficiency was essentially rated on the basis that his hypertension was rated at least 10 percent disabling. The medical records do not show, nor does the Veteran contend, that he had any symptoms or received any treatment directly related to his renal insufficiency. Furthermore, as the Veteran's renal insufficiency progressed and demonstrated decreased kidney functioning, the Board has been able to grant him increased schedular ratings as those criteria were met. At no time, however, does the medical evidence show the Veteran's renal insufficiency was in any way unique or extraordinary such that the schedular rating criteria would not be adequate to rate this disability. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun, 22 Vet. App. at 111. In conclusion, the Board finds that the preponderance of the evidence is against finding that a separate disability rating higher than 30 percent is not warranted for the Veteran's service-connected renal insufficiency prior to January 3, 2008. The Board does find, however, that the evidence supports the assignment of a disability rating of 60 percent, but no higher, from January 3, 2008 until September 17, 2008; and a disability rating of 80 percent, but no higher, from September 18, 2008, until April 16, 2009. To that extent, the Veteran's appeal is granted. Diabetes Mellitus, Type II In the March 2004 rating decision, service connection was granted for diabetes mellitus, type II, with erectile dysfunction and bilateral retinopathy evaluated as 20 percent disabling under Diagnostic Code 7913. The Veteran is seeking a higher initial disability rating essentially claiming that VA failed to take into account the affect his medications have on his overall functioning, especially that they cause fatigue and decreased mental alertness. See August 2005 Notice of Disagreement. Diabetes mellitus, type II, is evaluated under 38 C.F.R § 4.119a, Diagnostic Code 7913. Under that code, the 20 percent rating assigned contemplates diabetes mellitus requiring insulin and a restricted diet, or requiring the use of an oral hypoglycemic agent and restricted diet. A higher 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is warranted for 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. Id. A 100 percent rating is warranted for 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. Id. In the present case, the Board finds that the evidence fails to demonstrate that the Veteran ever used insulin to treat his diabetes mellitus, type II. Rather, the medical evidence shows that he used multiple oral hypoglycemic medications and diet restrictions for control, when he was compliant, and refused to use insulin although it was recommended on at least one occasion. In fact, the medical evidence shows that, since May 2009 (after the Veteran started on dialysis), he was removed from even the single oral hypoglycemic medication he was on and since then has only controlled his diabetes through exercise, diet and dialysis. Furthermore, there is no evidence to demonstrate that the Veteran has ever been placed on regulation of activities due to hypoglycemia or ketoacidosis. Rather the Veteran was encouraged to increase his activity for better glycemic control. Consequently, as the higher ratings for diabetes mellitus, type II, require the use of insulin and the regulation of activities, the evidence fails to demonstrate that these criteria for a higher disability rating for diabetes mellitus, type II, have been met. The Board acknowledges that, during 2008 to early 2009, the Veteran was hospitalized multiple times for hypoglycemia. The private treatment records, however, indicate that the cause of his hypoglycemia was actually his rapidly decreasing kidney functioning, which led to his being placed on dialysis in April 2009. In fact, as just stated, once the Veteran started on dialysis, his diabetes became so controlled that he was taken off any oral hypoglycemic medication and has merely used diet, exercise and dialysis to control his diabetes mellitus, type II. Furthermore, simply because the Veteran was hospitalized for hypoglycemia still is not sufficient to warrant a higher rating because he was not on insulin or regulation of activities to control his diabetes mellitus, type II. Consequently, the Board finds that the preponderance of the evidence is against finding that the criteria for a disability rating higher than 20 percent have been met. The Board must also consider, however, whether any of the Veteran's diabetic complications included in this evaluation warrant a separate compensable disability rating. The evidence demonstrates that the Veteran has erectile dysfunction secondary at least in part to his diabetes mellitus, type II. In addition, an August 2003 VA eye examination resulted in a finding of mild background diabetic retinopathy. The Board notes that there is not a diagnostic code specifically for erectile dysfunction. When an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. 38 C.F.R. § 4.27. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's erectile dysfunction is currently rated by analogy under Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power warrants a 20 percent rating. A note to Diagnostic Code 7522 instructs VA to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b , Diagnostic Code 7522. In this regard, the Board notes that special monthly compensation under 38 C.F.R. § 3.350 for loss of use of a creative organ was also granted in the August 2004 rating decision, effective the date of service connection. Therefore, the issue of special monthly compensation is not before the Board. Retinopathy is rated by analogy under Diagnostic Code 6006, pertaining to retinitis. See 38 C.F.R. §§ 4.20, 4.84a (2003). The Board notes that the rating criteria for evaluating eye diseases were amended effective December 10, 2008. 73 Fed. Reg. 66,543 (Nov. 10, 2008). These amendments, however, are only applicable to applications for benefits received by VA on or after December 10, 2008. As the Veteran's claim for service connection was received prior to that date, the Board will consider whether a separate rating is warranted for diabetic retinopathy only under the former rating criteria. Under Code 6006, retinitis is rated from 10 to 100 percent based on impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. Impairment of visual acuity is rated under Diagnostic Codes 6071-6079. 38 C.F.R. §§ 4.75, 4.83a, 4.84a (2003). Where the schedular criteria does not provide for a noncompensable evaluation, such an evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial compensable rating for erectile dysfunction has not been warranted at any time since January 27, 2003, the effective date of the grant of service connection. The evidence merely shows the Veteran has erectile dysfunction, but not that there is any penile deformity. Hence the criteria for a 20 percent disability rating under Diagnostic Code 7522 are not met. Furthermore, there is no evidence that the Veteran has atrophy of both testicles to warrant a compensable disability rating under Diagnostic Code 7523. As for the Veteran's mild background diabetic retinopathy, the evidence fails to establish that this has been an active process or that it has affected his visual acuity or field loss. The August 2003 VA examiner stated that this condition did not decrease the Veteran's visual acuity as he had uncorrected 20/20 vision bilaterally. Subsequent VA eye examinations conducted in July 2004 and January 2008 failed to actually result in a finding that the Veteran has diabetic retinopathy. The Board notes that the examiner who conducted a VA diabetes examination in January 2013 noted that the Veteran had diabetic retinopathy as a complication of his diabetes; however, no eye examiner was completed. Consequently, the evidence fails to demonstrate that a compensable disability rating is warranted for diabetic retinopathy because it does not show that either he has active diabetic retinopathy or that it causes decreased visual acuity or loss of visual fields. Consequently, based upon the evidence of record, the Board finds that the preponderance of the evidence is against finding that separate compensable disability ratings are warranted for the Veteran's diabetic complications of erectile dysfunction and diabetic retinopathy. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected diabetes. The Veteran's diabetes was essentially manifested by the use of oral hypoglycemic medications and restricted diet for control until 2008, at which time he experienced a few periods of hypoglycemia that required hospitalization. These episodes, however, were the result of the Veteran's decreased kidney functioning and clearly resolved once the Veteran was placed on dialysis as evidenced by the fact that within a month he was removed from all medications and since has controlled his diabetes with diet, exercise and dialysis. Prior to that, the Board acknowledges that there were periods when the Veteran's diabetes was not well-controlled but this was mostly due to his failure to comply with taking his medications and controlling his diet. Even so, the medical evidence fails to demonstrate that these periods when his diabetes was not well-controlled resulted in any extraordinary symptoms or residuals not contemplated by the rating schedule. As for his diabetic retinopathy and erectile dysfunction, there is no indication that the rating criteria do not adequately compensate for these disabilities. The Board notes that, even though there is no specific Diagnostic Code for erectile dysfunction, that special monthly compensation was awarded for loss of the use of a creative organ, providing the Veteran adequate compensation for his erectile dysfunction. As for his diabetic retinopathy, the evidence raises the question as to whether he even has this complication as nothing was found on the VA eye examinations conducted in July 2004 and January 2008. Nevertheless, even if he does, it is not affecting his visual acuity according to the VA examiners or causing any unusual or extraordinary symptoms not contemplated by the rating criteria. Consequently, the Board finds that the VA rating schedule is adequate to evaluate the Veteran's service-connected diabetes with erectile dysfunction and diabetic retinopathy. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun, 22 Vet. App. at 111. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's claim is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran was awarded a 100 percent schedular rating for his renal insufficiency effective April 17, 2009. Consequently, the issue of entitlement to a TDIU after that date is moot. Thus, the Board will only be considering whether a TDIU is warranted prior to April 17, 2009. After considering the evidence, the Board finds it is not. The Veteran claims that, because of his service-connected disabilities, especially his diabetes mellitus, type II, and hypertension, that he was not able to obtain a job receiving the substantial wages he received at the one he left in April 2001 as a refinery unit operator because these disabilities caused him excessive fatigue and decrease in mental alertness. He further stated that he would not have been able to qualify to use a respirator as required by his job due to his diabetes and hypertension medications and their side effects. He claims that his disabilities affecting bodily systems had resulted in his not getting gainful employment where stooping, standing for long periods, climbing, working in crawl spaces, working in elevated areas, and not being able to perform extended physical activity without becoming fatigued easily, had been a part of all of his earlier employment except call center jobs requiring very little physical activity. In addition, the Veteran submitted an employment history that shows his longest term of employment was from May 1979 to January 1994 as a test engineer at which job he worked essentially as a mechanic on space shuttle flight simulators. His highest monthly gross earnings were $3,700. He was unemployed until November 1995 when he became the operations manager for a home health care business. He worked there until September 1997. His highest monthly gross earnings were $2,500. In September 1997, he then went to work as a refinery unit operator. He worked at this job until May 2001, only about three and a half years. Per his statement he left this job because the refinery closed down, not because of his service-connected disabilities. His highest monthly gross earnings were $6,300. He was unemployed until he took a job as a car salesman in March 2002, which he was only at for six months. He took another job as a car salesman in November 2002 but left that job in December 2002 to become a customer service representative for a call center supporting vendor products. His highest monthly earnings at that job were $1,600. He left that job in April 2003 and worked for the U.S. Postal Service for only one month as a rural carrier. It is unclear as to why he left that job since he stated he lost no time due to illness. In June 2003, he took a job as a customer service representative for a hotel's rewards program. His highest monthly gross earnings as of March 2004 were $1,700. The evidence shows that he continued working there until at least May 2009, and that he has been receiving Social Security disability benefits since May 2009. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high 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 the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the time that the Veteran filed his claim for a TDIU in March 2004, he was service-connected for only diabetes mellitus, type II, rated as 20 percent disabling and hypertension with renal insufficiency rated as 30 percent disabling, with a combined disability rating of 40 percent. Thus, he did not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) in March 2004. In an August 2004 rating decision, the Veteran was awarded service connection for keloid formation, scar, right forearm, evaluated as noncompensable effective June 2, 2004. Thus, his combined disability rating remained 40 percent and he still did not meet the schedular criteria for a TDIU. In a November 2007 rating decision, the RO granted service connection for aortic insufficiency associated with hypertension with renal insufficiency and evaluated it as 30 percent disabling effective September 29, 2005. Thus, as of September 29, 2005, the Veteran's combined disability rating was 60 percent. Even with this increase, he still did not meet the schedular criteria for a TDIU as he failed to have one disability rated at 40 percent with a combined disability rating of 70 percent. In an October 2012 rating decision, the RO granted an increased disability rating to 60 percent for service-connected aortic insufficiency effective October 14, 2010, and also granted separate service connection for heart valve replacement (previously rated as aortic insufficiency) evaluated as 100 percent effective April 19, 2011 and 60 percent as of November 1, 2011. With the grant of this increased disability rating for aortic insufficiency/heart valve replacement, the Veteran's combined disability rating was 80 percent effective October 14, 2010; 100 percent effective April 19, 2011; and 80 percent effective November 1, 2011. Consequently, as of October 14, 2010, the Board finds that the Veteran met the schedular criteria for a TDIU. Nevertheless, whether the Veteran met or did not meet the schedular criteria based upon his disability ratings, the Board finds that a TDIU is not warranted as the evidence fails to demonstrate that he was unable to secure and follow a substantially gainful occupation prior to April 17, 2009. By the Veteran's own report, he was gainfully employed full time as of June 2003 as a customer service representative for a hotel's rewards program making over $10.00 an hour with a highest monthly gross earnings of $1,700, which translate to $20,400 per year. The evidence shows he continued working at this job until at least May 2009, about a month after he started dialysis. The Board finds that merely because the Veteran was unable to find employment in the oil industry at which he made his highest earnings or whether he could continue at such employment given his service-connected disabilities is not the question. Nor is the question whether the Veteran was unable to obtain employment in which he previously worked or employment in which he made comparable earnings as previous employment. Rather the question is whether the Veteran is unable to secure and follow any substantially gainful employment. The Veteran may not have been able to continue to do medium to heavy labor, which he argues his refinery job was, but that clearly does not mean he was unable to do more sedentary jobs as evidenced by the fact that he was able to maintain employment at a sedentary job as a customer service representative for close to six years. Furthermore, the Veteran even admitted he was able to sedentary work such as his job as a customer service representative but argued that this was not comparable to his previous employment because he could not make as much money at it. As previously indicated, however, the amount of money a Veteran previously made is not a criterion for establishing entitlement to a TDIU. Rather the question is simply can the Veteran secure and follow a substantially gainful occupation given his education, employment history and vocational attainment. Furthermore, the Board does not find the Veteran's last employment as a customer service representative to be marginal. In 2004, the Veteran reported he was earning $10.18 per hour. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). The Board takes judicial notice that this amount was $9,827 (for one person under the age 65) and $9,060 (for one person age 65 or older) in 2004, which is the last year that the Board has income data for the Veteran. See U.S. Department of Commerce, Bureau of the Census, Poverty Thresholds, http://www.census.gov/hhes/www/poverty/data/threshld/; see also Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (Judicial notice may be appropriate for facts that are "not subject to reasonable dispute."). Based on the Veteran's report in March 2004, he would have earned approximately $20,000 in 2004. Clearly this is more than double the poverty threshold for one person as set for 2004. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). "Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability." 38 C.F.R. § 4.17(a); see also Moyer v. Derwinski, 2 Vet. App. 289, 295 (1992) (applying the definition of "marginal employment" in § 4.17(a), which concerns TDIU pension claims, to TDIU a compensation claim). An "ability to work only a few hours a day or only sporadically," such as maintaining part-time self-employment as a counselor and tutor, is not to be considered an "ability to engage in substantially gainful employment." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). In the present case, the Veteran was clearly not self-employed as he worked for a large hotel chain. Furthermore, such employment was not doing odd jobs or at half the remuneration normally given. The Veteran was employed as a customer service representative and, from his own employment history, his pay was consistent with prior similar employment. Moreover, the Veteran's last employment clearly was not what one would call protected either, meaning that he worked for a family business or in a sheltered workplace for people with disabilities. As the Veteran was clearly able to secure and follow a substantially gainful occupation until May 2009 after his renal insufficiency required dialysis, the Board finds that the preponderance of the evidence is against finding that a TDIU was warranted prior to April 17, 2009. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's claim is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial disability rating greater than 30 percent for service-connected hypertension is denied. Entitlement to an initial separate disability rating for service-connected renal insufficiency is denied prior to January 3, 2008. Entitlement to a disability rating of 60 percent for service-connected renal insufficiency is granted from January 3, 2008 until September 17, 2008, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a disability rating of 80 percent for service-connected renal insufficiency is granted from September 18, 2008 until April 16, 2009, subject to controlling regulations governing the payment of monetary benefits. Entitlement to an initial disability rating greater than 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction and bilateral retinopathy is denied. Entitlement to a TDIU prior to April 17, 2009 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs