Citation Nr: 1340022 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 07-28 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the reduction in the rating for service-connected type II diabetes mellitus (DM) with erectile dysfunction from 40 percent to 20 percent effective April 29, 2005, was proper. 2. Entitlement to a rating in excess of 40 percent for service-connected type II DM with erectile dysfunction. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was notified of this decision in October 2005. It reduced the rating for his service-connected type II DM with erectile dysfunction from 40 percent to 20 percent effective April 29, 2005. It also denied him a TDIU. He appealed each of these determinations. In October 2010, the Veteran testified on this matter at a hearing at the RO before the undersigned Veterans Law Judge. The Board added the claim for a rating in excess of 40 percent prior to April 29, 2005, and in excess of 20 percent thereafter for service-connected type II DM, which is with erectile dysfunction, as an inferred issue in July 2011. Next, the Board remanded this matter for additional development. Another remand for additional development was issued by the Board in December 2012. All additional development now has been completed or at least substantially completed. Adjudication thus may proceed at this time if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). No problems with adjudication at this time are identified by the Board. The following determinations accordingly are made based on review of the Veteran's paper claims file and Virtual VA electronic claims file. Of note is that the aforementioned inferred issue has been recharacterized simply as entitlement to a rating in excess of 40 percent for service-connected type II DM with erectile dysfunction in light of the determination regarding the reduction in this rating. FINDINGS OF FACT 1. The reduction of the rating for service-connected type II DM with erectile dysfunction from 40 percent to 20 percent effective April 29, 2005, was improper in that it did not comport with applicable laws and regulations. 2. The Veteran's service-connected type II DM with erectile dysfunction does not manifest episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 3. The Veteran's service-connected disabilities, with a collective rating of 70 percent or higher including type II DM with erectile dysfunction rated at 40 percent, are not of sufficient severity to render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The reduction in the service-connected type II DM with erectile dysfunction rating is void ab initio. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2013). 2. The criteria for a rating in excess of 40 percent for service-connected type II DM with erectile dysfunction have not been met. 38 U.S.C.A. §§ 1114, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.350, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.21, 4.31, 4.115b, Diagnostic Code 7522, 4.119, Diagnostic Code 7913 (2013). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25, 4.26 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Discussion of these duties is not necessary with respect to the reduction issue because the benefit sought is granted herein. It follows that any error committed regarding them was harmless. Discussion of the duties to notify and assist is necessary with respect to the increased rating for service-connected type II DM with erectile dysfunction and TDIU issues because the benefit sought is denied herein. VA must provide notice of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For increased ratings, generic rather than specific notice about substantiation is required. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Notice of how ratings and effective dates are assigned also should be included. Id.; Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided before a decision is made. Pelegrini, 18 Vet. App. at 112. However, there is no error in failing to provide prior notice if it was not required at the time. Subsequent adjudication following notice instead must be provided. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A June 2005 letter informed him and his representative of the criteria for establishing a TDIU, the evidence required in that regard, and his and VA's respective duties for obtaining evidence. This was prior to the September 2005 rating decision. Via letter dated in March 2006, the Veteran was informed of how ratings and effective dates are assigned. This was after the rating decision but immediately following caselaw first requiring such notification. All of the aforementioned was repeated in a November 2008 letter to the Veteran and his representative. In compliance with the Board's December 2012 remand, a letter dated that same month informed the Veteran and his representative of the criteria for establishing an increased rating, the evidence required in this regard, his and VA's duties for obtaining evidence, and how ratings and effective dates are assigned. There was subsequent readjudication in a May 2013 supplemental statement of the case (SSOC). The timing error in providing the letter after the rating decision thus was cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006). As implied from the notification that must be provided, VA must assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also must assist by providing a medical examination and/or obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Social Security Administration (SSA) records and VA treatment records regarding the Veteran have been obtained by VA. The former were obtained as directed in the Board's July 2011 remand while some of the latter were obtained as directed in the Board's December 2012 remand. No private treatment records regarding the Veteran have been obtained by VA. He has had opportunities to identify such records and authorize their release to VA, to include pursuant to the December 2012 remand which found his indications that he is treated only at VA to be incorrect, but he has not done so. Further, neither he nor his representative has submitted any such records. The Veteran thus has failed to cooperate in ensuring that relevant records are procured, as is required. Wood v. Derwinski, 1 Vet. App. 190 (1991); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In any event, the SSA records contain some treatment records from a private physician. Statements from this physician have been submitted. Clarification of an October 2010 statement was sought in compliance with the Board's December 2012 remand, but the physician did not respond. The Veteran was notified via a March 2013 letter that it was his responsibility to ensure the clarification was provided, but he did not respond. VA medical examinations, some containing a medical opinion, were performed in June 2004, February 2005, June 2005, July 2005, January 2008, December 2008, January 2010, and September 2011. To the extent the paper or electronic claims file was not reviewed, it is of no great import since the Veteran gave an account of his medical history to each examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). Each examiner also interviewed him regarding his symptoms and undertook an assessment of him. These actions have provided sufficient detail so that the determinations herein are fully informed. As such, the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has identified any other necessary development that has not been completed. The record additionally does not indicate any such development. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Proceeding with adjudication therefore does not prejudice the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Of final note, a hearing must include an explanation of the issues and identification of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The undersigned stated the issues comprising this matter at the beginning of the Veteran's October 2010 hearing. The criteria for establishing an increased rating for service-connected type II DM with erectile dysfunction and a TDIU later were discussed. Information was elicited from the Veteran by the undersigned and his representative concerning his DM symptoms, their impact on his functioning, his treatment for them, his educational and work history, and why he feels he can no longer work. SSA records and the October 2010 statement from a private physician were mentioned. It is reiterated that these records have been obtained since and that efforts made to clarify the statement and obtain the physician's treatment records were unsuccessful. Reference was not made to any other outstanding evidence. II. Reduction VA handles cases affected by a change in medical findings so as to produce the greatest degree of stability in ratings consistent with the laws and regulations governing compensation. 38 C.F.R. § 3.344(a). A variety of requirements thus must be met in order for a reduction to be proper. These include both procedural requirements as well as substantive requirements. Where a reduction in a rating would result in a decrease in the overall amount of compensation payable, proper procedure begins with the preparation of a rating decision proposing the reduction and setting forth the material facts and reasons for it. 38 C.F.R. § 3.105(e). In addition, the Veteran must be notified in writing that he may request a predetermination hearing, provided that the request is received within 30 days of the date of the notice, and that he has 60 days to present additional evidence showing that compensation should be continued at the present level. Id.; 38 C.F.R. § 3.105(i)(2). If after consideration of any additional evidence timely received, to include that from any predetermination hearing, the reduction still is found warranted, a final rating decision setting forth the evidence and reasons for it is to be prepared. Id. The effective date of the reduction is the last day of the month in which a 60-day period from the date of the notice to the Veteran expires. 38 U.S.C.A. § 5112(b)(6); Id. Where a reduction in a rating would not result in a decrease in the overall amount of compensation payable, there are no procedural requirements. The aforementioned due process provisions indeed do not apply. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C.A. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). The standard for establishing improvement varies depending on amount of time the Veteran has been in receipt of the rating. For ratings in effect less than five years, such as those that have not become stabilized and are likely to improve, reduction is warranted when reexamination discloses improvement. 38 C.F.R. § 3.344(c). For ratings that have been in effect for five years or more, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. §§ 3.344(a-b). Examinations thus usually are the comparison point for determining whether or not there has been improvement. Collier v. Derwinski, 2 Vet. App. 247 (1992); Hohol v. Derwinski, 2 Vet. App. 169 (1992). Those forming the basis for a reduction must be adequate. Faust v. West, 13 Vet. App. 342 (2000); Tucker v. Derwinski, 2 Vet. App. 201 (1992). Evidence other than examinations must be considered, however. This includes post-reduction evidence, although the reduction must be supported by the evidence at the time it is made. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Both medical and non-medical indicators of improvement may be considered. Faust, 13 Vet. App. at 342. Additionally, the general regulations governing ratings (set forth below) are applicable for determining the propriety of reducing such a rating. Brown v. Brown, 5 Vet. App. 413 (1993). VA is required to apply all relevant statutes and regulations. Wilson v. West, 11 Vet. App. 383 (1998); Crowe v. Brown, 7 Vet. App. 238 (1994). Reduction of a rating generally is void ab initio where VA has failed to follow them. Greyzck v. West, 12 Vet. App. 288 (1999); Brown, 5 Vet. App. at 413; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Indeed, few exceptions exist where VA's failure to follow them does not render reduction of a rating void ab initio. One such exception is when the only failure is a mere miscalculation of the effective date for a reduction. VAOPGCPREC 31- 97 (Aug. 1997). The Board finds that restoration of the 40 percent rating for the Veteran's service-connected type II DM with erectile dysfunction effective April 29, 2005, is warranted. In other words, the Board finds that reduction of this rating to 20 percent effective as of this date was improper and is void ab initio. Procedural requirements were not applicable. However, VA failed to apply and follow all pertinent substantive requirements. The 40 percent rating thus is restored, subject to the laws and regulations governing the payment of monetary benefits, effective as of the aforementioned date. In an April 2005 rating decision, the Veteran's rating for service-connected type II DM with erectile dysfunction was increased from 20 percent to 40 percent effective January 5, 2005. Service connection also was granted, with initial ratings and effective dates assigned, for xerosis and another disability. Service connection was already in effect for still other disabilities. The Veteran's combined rating taking all this into account was 70% as of January 5, 2005. That the September 2005 rating decision, the next issued after the April 2005 rating decision, reduced his rating for service-connected type II DM with erectile dysfunction to 20 percent effective April 29, 2005, is reiterated. However, his rating for service-connected xerosis was increased from 10 percent to 30 percent effective as of this date. Ratings for several other service-connected disabilities were continued. The combined rating for the Veteran's service-connected disabilities taking all this into account was 70% as of the aforementioned date. The reduction in the rating for his service-connected type II DM with erectile dysfunction thus was offset by the increase in the rating for his service-connected xerosis. As such, the reduction did not result in a decrease in the overall amount of compensation payable to him. It follows that the procedural requirements are not applicable. That there was no rating decision proposing the reduction followed by notice to the Veteran and a final rating decision effectuating the reduction therefore is inconsequential. The Veteran's service-connected type II DM with erectile dysfunction was rated at 40 percent from January 5, 2005, to April 28, 2005. This equates to a period of only a few months, far short of five years. Accordingly, the appropriate substantive standard is improvement rather than substantial material improvement. A 20 percent rating for DM is warranted when insulin and restricted diet or oral hypoglycemic agent and restricted diet is required. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is merited when insulin, restricted diet, and regulation of activities is required. Id. It is undisputed that the Veteran has required insulin, oral hypoglycemic agents, and a restricted diet since before 2005. VA treatment records, SSA records containing treatment records from private physician J.W., statements from Dr. J.W. received in June 2005 but dated in May 2005 as well as from October 2010, and VA medical examinations indeed document these criteria. At issue, then, is whether or not he had to regulate his activities from January to April 2005 but did not have to do so thereafter. The question is whether there was improvement in that his regulation of activities was temporary, in other words. Regulation of activities is defined specifically as avoidance of strenuous occupational and recreational activities in the criteria for a 100 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. No finding that the Veteran had improved with respect to regulation of his activities ever was made. Improvement in this regard or indeed in any regard was not mentioned in the September 2005 rating decision. Improvement also was not mentioned in the July 2007 statement of the case (SOC) or the March 2010 or July 2012 SSOCs. 38 C.F.R. § 3.344 was not cited in the SOC as it should have been for a reduction. 38 U.S.C.A. § 7105(d)(1); 38 C.F.R. §§ 19.29(b). It also was not cited in the SSOCs. 38 C.F.R. § 19.31. There indeed was no comparison of the Veteran's regulation of his activities from January to April 2005 with his regulation of his activities thereafter in the rating decision, SOC, or SSOCs. In sum, there was no actual discussion concerning a reduction. The rating decision, SOC, and SSOCs rather discussed whether the criteria for a 40 percent rating were met as if an increased rating were at issue. Even if the discussion had concerned a reduction, it is doubtful that improvement appropriately would have been found. The April 2005 rating decision increasing the Veteran's service-connected type II DM with erectile dysfunction rating to 40 percent from 20 percent took into consideration a February 2005 statement from VA physician M.J. and a February 2005 VA medical examinations. The statement, which was on a standardized form, indicated that he regulated his activities due to type II DM. Remarks in this regard were requested but not provided. The examination included the Veteran's report that he cannot do strenuous physical work as a result of his type II DM and complications thereof. A finding to this effect was made. Yet no basis for the finding is apparent except the Veteran's report, and there is nothing to prove or even to suggest he was aware of the definition of regulation of activities. Occupational activities further specifically were mentioned, with no mention of recreational activities. Although apparently not considered, an August 2004 standardized form statement from Dr. M.J. indicated that the Veteran does not regulate his activities due to type II DM. A February 2004 statement from Dr. M.J. revealed that the Veteran cannot undergo strenuous exercise, but this was due to breathing difficulty and chest discomfort as opposed to type II DM. The evidence thus is in conflict. However, it weighs in favor of finding that he did not need to regulate his activities. The September 2005 rating decision decreasing the Veteran's service-connected type II DM rating from 40 percent back down to 20 percent took into consideration the July 2005 VA medical examination. This examination was deemed adequate above. Regulation of his activities due to type II DM was not noted. It instead was opined that he has no restrictions and can perform common activities. Although apparently not considered, a statement from Dr. J.W. dated in May 2005 and received in June 2005 describes difficulties the Veteran faces as a result of his type II DM. Regulation of activities was not referenced. The Veteran indicated in his notice of disagreement dated in October 2005 and received in November 2005 that he does regulate his activities as a result of his type II DM. Yet he did not provide any explanation in this regard. Without more, it thus cannot be concluded that he was aware of the definition of regulation of activities. Additionally, the post-reduction evidence weighs in favor of finding that the Veteran continues to have no need for regulation of his activities. An October 2007 standardized form statement from VA nurse A.K. and VA physician Dr. P. indicates that he does not regulate his activities due to type II DM. The September 2011 VA medical examination notes he is not required to regulate his activities as a result of type II DM. Rather, the Veteran himself noted such regulation due to arthritis in his knees and back and chronic obstructive pulmonary disease (COPD). VA treatment records, particularly, those dated in 2010 and 2011, further reflect that he should exercise regularly to help control his type II DM. While an October 2010 statement from Dr. J.W. indicates that the Veteran is on a regimen of regulated activities due to type II DM, no explanation was provided in this regard. It is unclear whether J.W., as a private physician as opposed to a VA physician, is aware of the precise definition of regulation of activities. The statement is dated after the October 2007 standardized form statement but before the examination. A change between the standardized form statement and Dr. J.W.'s statement three years later is plausible, but a change between Dr. J.W.'s statement and the examination around a year later is less plausible. This is true especially since everything except Dr. J.W.'s statement, to include VA treatment records dated at the time of it and the examination, is in agreement that there is no requirement for the Veteran to regulate his activities. SSA records containing Dr. J.W.'s treatment records dated from 2006 to 2008 indeed are devoid of any mention of regulation of activities. Relative stability with respect to regulation of activities due to type II DM, in sum, in found instead of improvement based on the February and July 2005 VA medical examinations and the other evidence. Indeed, most of the evidence weighed in favor of finding that such regulation was not required before and after the reduction. Some of the evidence before the reduction and one piece of evidence after the reduction weighed in favor of the contrary finding, but this evidence all is of little probative value. A 40 percent rating was awarded to the Veteran based on the evidence before the reduction. This rating, as such, was generous. It is apparent that the RO subsequently no longer wished to be so generous with this rating. However, a reduction cannot be effectuated based on a change of heart. The only other avenue for changing the rating other than showing improvement is to conclude there was clear and unmistakable error in its assignment. No action has been undertaken by the RO to make such a conclusion. III. Increased Rating A. Schedular Disability ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate. 38 C.F.R. § 4.2. The assignment of a staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994). If two ratings are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however. 38 C.F.R. § 4.3. The claimant thus prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DM is the subject of 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is merited thereunder for DM requiring insulin, restricted diet, and regulation of activities, as set forth above. Id. DM 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 rated warrants a 60 percent rating. Id. The maximum 100 percent rating is reserved for DM 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 rated. Id. Per Note (1) to Diagnostic Code 7913, compensable complications of DM are to be rated separately unless they are used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. The Veteran has numerous compensable complications of DM. His cataracts, xerosis, coronary artery disease (CAD), peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity are compensable complications. Indeed, each has been service-connected on a secondary basis and assigned a separate rating not encompassed by this matter. The Veteran's erectile dysfunction is his only noncompensable complication. As such, it is included as part of his service-connected type II DM. There is no Diagnostic Code addressing erectile dysfunction. An analogous Diagnostic Code therefore must be utilized. 38 C.F.R. § 4.20. Three Diagnostic Codes address penile disabilities. 38 C.F.R. § 4.115b, Diagnostic Code 7520, is for removal of half or more of the penis. Diagnostic Code 7521 is for removal of the glans. Diagnostic Code 7522 concerns penis deformity with loss of erectile power. As such, it is most analogous to erectile dysfunction. It provides for a 20 percent rating and review for entitlement to special monthly compensation. Id. The probative value of the evidence must be assessed. 38 C.F.R. § 4.6. The Board must account for evidence it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). That includes any lay evidence in addition to the medical evidence. Only the most relevant evidence need be discussed, even though all the evidence must be and thus has been reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The most relevant evidence includes evidence dated beginning one year prior to an increased rating claim. 38 C.F.R. § 3.400(o)(2). It also includes any evidence dated even earlier that sheds light on the disability during aforementioned timeframe. 38 C.F.R. § 4.1. Given the evidence, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's service-connected type II DM with erectile dysfunction. The criteria for even the next highest rating for DM of 60 percent have not been met. Because the criteria for each higher rating are progressive, it is unnecessary to consider the criteria for the maximum 100 percent rating. Further, the criteria for a separate compensable rating for erectile dysfunction have not been met. Discussed above was that the Veteran undisputedly requires insulin, oral hypoglycemic agents, and a restricted diet and that, notwithstanding some evidence to the contrary, the weight of the evidence is that he is not required to regulate his activities. Next for consideration is whether or not he has episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. In addition to the lack of a requirement that he regulate his activities, there is no indication in this regard. SSA records to include Dr. J.W.'s private treatment records are silent regarding episodes of ketoacidosis and hypoglycemic reactions. So is Dr. J.W.'s October 2010 statement. Dr. J.W.'s June 2005 statement indicates that the Veteran was seen twice in May 2005 two days apart due to abnormal blood sugar readings. Hypoglycemia was referenced along with the need for close monitoring. However, it was not noted that he required hospitalization. Dr. J.W.'s 2006 to 2008 treatment records contained within the SSA records are lacking such a notation. Neither they nor VA treatment records reflect care specifically for diabetes as frequently as twice per month over any significant period of time. The VA treatment records instead reveal that the Veteran is seen on a somewhat less frequent basis for diabetes care. They strongly suggest that this care would have been even less frequent but for his noncompliance in taking insulin as directed. They additionally do not note that he has been hospitalized for ketoacidosis of hypoglycemia. An October 2008 VA treatment record shows that hypoglycemia was contemplated but ultimately rejected as the cause of his syncope. VA treatment records otherwise are devoid of any mention of hypoglycemia, hypoglycemic reactions, or episodes of ketoacidosis. Finally, the Veteran denied problems with hypoglycemia at a February 2005 VA medical examination. He indicated that he visits his diabetes care provider once per month and that he is hospitalized for ketoacidosis an average of once per year including during the previous year. At the July 2005 VA medical examination, the Veteran denied having ever been hospitalized due to low blood sugar (hypoglycemia). He indicated visiting his diabetes care provider approximately three times per month and having been hospitalized only once, in 1991, due to high blood sugar (ketoacidosis). It was found at the September 2011 VA medical examination that the Veteran visited his diabetes care providers less than twice per month and that he had no episodes of ketoacidosis or hypoglycemic reactions within the previous year. This was despite his reports of hypoglycemia while working in 2005 and currently once or twice a month. As there is no indication that he has a medical background, he is a lay person. Lay persons are competent to report personal experiences. Layno v. Brown, 6 Vet. App. 465 (1994). He is competent regarding the aforementioned. However, he is only somewhat credible. Competent lay evidence may be found lacking in credibility due to a variety of factors such as self-interest, inconsistency, facial implausibility, and desire for monetary gain. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran consistently has denied hospitalization for hypoglycemia, and such denials are consistent with the treatment records and statements discussed above as well as the September 2011 VA medical examination findings. He is credible in this regard. The Veteran inconsistently has reported and denied hospitalization for ketoacidosis and bimonthly visits to his diabetes care provider. The aforementioned records, statements, and examination findings are consistent with his denials but are inconsistent with his reports. A lack of notation of a condition where such notation would normally be expected may be considered as evidence that the condition did not exist. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). It is facially implausible that these records and statements at least, in which ongoing treatment for the Veteran's type II DM is documented, would not note hospitalization had such occurred. His report of bimonthly visits to his diabetes care provider appears motivated at least partially by his self-interest in gaining financially. Such a report indeed raises the likelihood that an increased rating will be awarded. The aforementioned records, statements, and examination confirm that the Veteran was seen twice for diabetes care only in the month of May 2005. The need for his diabetes to be closely monitored was noted at that time by Dr. J.W., but there is no indication that this equated to bimonthly visits. To the extent such an indication exists in treatment records from Dr. J.W., particularly those dated during the remainder of 2005, it is reiterated that they are not outstanding due to the Veteran's failure to work with VA in obtaining them. In sum, the available evidence shows that he is credible in denying but is not credible in reporting hospitalization for ketoacidosis and bimonthly visits to his diabetes care provider. A November 2004 rating decision awarded the Veteran special monthly compensation based on loss of use of a creative organ effective December 3, 2003. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Review in this regard as it pertains to erectile dysfunction therefore is unnecessary. Loss of erectile power is synonymous with erectile dysfunction. However, there is no indication of a penile deformity. Neither the Veteran nor his representative has contended he has such a deformity. His penis to be normal upon assessment at VA medical examinations in June 2004, February 2005, July 2005, and December 2008. SSA records which contain Dr. J.W.'s treatment records dated from 2006 to 2008 further do not reference such any deformity of the penis. Neither do VA treatment records, to include those dated after the December 2008 VA medical examination. At least some treatment records would have noted a deformity of the penis if it existed since erectile dysfunction routinely was assessed as a complication of DM. Buczynski, 24 Vet. App. at 221. A zero percent rating is assigned when the criteria for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran's erectile dysfunction, as it warrants a noncompensable rating, therefore remains considered as part of the diabetic process. In an October 2012 Brief, the Veteran's representative argued that an increased rating is warranted because not all criteria for a given rating must be satisfied. It is true that all criteria, especially for a Diagnostic Code with numerous criteria for each rating, need not be satisfied. 38 C.F.R. § 4.21. Atypical instances are recognized, in other words. Id. Yet the rating assigned always must be coordinated with impairment of function. Id. Diagnostic Code 7913 contains five criteria for a 60 percent rating. In summary of the above, the Veteran clearly requires insulin and a restricted diet, and his erectile dysfunction complication would not be compensable is separately rated. The weight of the evidence is that he does not need to regulate his activities, although there is some dispute on this point. He does not have episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The Veteran thus meets three criteria, likely does not meet another criterion, and definitely does not meet the last criterion. The impairment of function this last criterion conveys is especially significant in that it requires discontinuance of usual activities, to include work, for annual to biannual admittance to the hospital or bimonthly treatment appointments. Indeed, a 40 percent rating is appropriate when this criterion is not met even where there is a requirement for insulin, restricted diet, and regulation of activities. It follows that the Veteran's situation more nearly approximates the criteria for a 40 percent rating versus a 60 percent rating. Consideration has been given to the application of reasonable doubt and the assignment of a staged rating in determining that an increased rating for the Veteran's service-connected type II DM with erectile dysfunction is not warranted. However, the preponderance of the evidence is against the assignment of a rating higher than 40 percent for any portion of the appeal period. There is no reasonable doubt to resolve in the Veteran's favor, and a staged rating is not warranted. B. Extraschedular As an alternative to assigning a schedular rating, or a rating under the Rating Schedule, one may be assigned on an extraschedular basis. 38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). A three step process governs the assignment of extraschedular ratings. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination of whether the evidence presents such an exceptional disability picture that the schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made. Id. If the rating criteria are inadequate, it must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. Id. Neither the Veteran nor his representative has argued for an extraschedular rating. There is no indication that his service-connected type II DM with erectile dysfunction cannot be contemplated adequately by the schedular rating criteria discussed above. The Veteran's situation, which includes restricted diet, taking insulin and oral hypoglycemic agents, and visiting a diabetic care provider, specifically are accounted for by these criteria. The assigned rating has been based on them in conjunction with associated regulations and caselaw. Higher ratings are possible, but the Veteran does not meet the criteria for a higher rating. The effect his type II DM with erectile dysfunction has on him is encompassed by the assigned rating. This includes that he must follow a medication regimen and cannot have an intimate relationship. It also includes his testimony at the October 2010 hearing, which is competent for the same reason as above and is credible because there is no reason for doubt, that he must eat several meals per day. Because the schedular rating criteria are adequate, the Board does not find an exceptional type II DM with erectile dysfunction picture. Discussion of whether there are related factors accordingly is unnecessary. Yet it is notable that there is no indication the Veteran ever has been hospitalized overnight due to his type II DM with erectile dysfunction. Dr. J.W.'s treatment records included among the SSA records rather mentions one hospitalization in or around October 2007 for another reason. He has not worked for a number of years. There is no indication of interference with his employment, when he did work, that arose to the level of marked. He indeed indicated at the June 2004 VA medical examination that his erectile dysfunction resulted in only three lost days from work within the previous year. It is reiterated that a February 2005 VA medical examination deemed him restricted only from strenuous physical work. Physical work that is not strenuous and sedentary work was not prohibited, in other words. Thus, referral for consideration of the assignment of an extraschedular rating is not warranted. IV. TDIU Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation is an occupation at which a livelihood is earned. VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d. It thus is "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked. Faust v. West, 13 Vet. App. 342 (2000). It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In determining whether a claimant is unable to engage in a substantially gainful occupation., consideration may be given to level of education, special training, and previous work experience but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be granted on a schedular or extraschedular basis. It is granted schedularly when a claimant is unable to secure or follow a substantially gainful occupation due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent. 38 C.F.R. § 4.16(a). If the claimant has more than one service-connected disability, one must be evaluated at 40 percent or more with a combined rating for all of 70 percent or more. Id. Service-connected disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor if applicable, as well as disabilities resulting from common etiology or a single accident and affecting a single body system will be considered as one disability with respect to the 40 percent requirement. Id.; 38 C.F.R. § 4.26. The combined rating is derived not by simply adding together the ratings for each disability but by use of the combined ratings table. 38 C.F.R. § 4.25. A TDIU may be granted extraschedularly even where the claimant does not meet the percentage evaluation requirements if he is unemployable due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent. 38 C.F.R. § 4.16(b). Referral to the Director of the C & P Service is required because VA, to include the Board, cannot assign an extraschedular TDIU in the first instance. Id.; Bagwell, 9 Vet. App. at 337; Floyd, 9 Vet. App. at 88; Shipwash, 8 Vet. App. at 218. Like above, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson, 7 Vet. App. at 36, Masors, 2 Vet. App. at 18; Wilson, 2 Vet. App. at 614; Hatlestad, 1 Vet. App. at 164; Gilbert, 1 Vet. App. at 49. That includes any lay evidence in addition to the medical evidence. Also like above, the benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. He thus prevails if the evidence supports a TDIU or is in relative equipoise but does not prevail when it is against a TDIU. Id. Finally like above, only the most relevant evidence need be discussed even though all the evidence must be and thus has been reviewed. Gonzales, 218 F.3d at 1378. The Veteran's 40 percent rating for service-connected type II DM with erectile dysfunction effective as of January 5, 2005, was restored effective April 29, 2005, and then found to be appropriate above. As such, there is no need to consider whether some of his service-connected disabilities involve one or both upper or lower extremities, resulted from a common etiology or single accident, or affect a single body system such that they are to be considered as one. The 10 percent rating for his service-connected xerosis associated with type II DM was effective February 2, 2005. As noted above, the increase to 30 percent was effective April 29, 2005. The Veteran's service-connected cataracts associated with type II DM has been rated at 30 percent since prior to the period on appeal. The same is true of a service-connected right knee disability, service-connected hypertension, and service-connected CAD to include as associated with type II DM each rated at 10 percent as well as service-connected hemorrhoids rated as noncompensable. Service-connected peripheral neuropathy of both the right lower extremity and the left lower extremity was rated at 10 percent effective October 11, 2007. A 10 percent rating for the Veteran's service-connected tinnitus and a noncompensable rating for his service-connected tinnitus became effective September 29, 2009. His combined rating for all of the aforementioned service-connected disabilities was 70 percent as of January 5, 2005. With the determinations made above, it is 80 percent from April 29, 2005, and 90 percent including the bilateral factor beginning October 11, 2007. A TDIU thus may be awarded on a schedular basis. In light of the evidence, the Board finds that the Veteran's service-connected disabilities have not been of sufficient severity to render him unable to secure or follow a substantially gainful occupation. He reported that he stopped working then in his May 2005 claim. This corresponds with his reports at the June 2004, February 2005, and July 2005 VA medical examinations. He inconsistently reported that he stopped working in May 2004 in an October 2008 statement. However, he questioned this date. The statement further was not contemporaneous to the time he quit working as was the claim. He, in sum, is competent to report both dates for the same reason as aforementioned but is credible in reporting May 2005 and not in reporting May 2004. There is no indication whatsoever that the Veteran has held even a part-time job since May 2005. It follows that he has not been employed, whether marginally or otherwise, since May 2005. Being without a substantially gainful occupation is not synonymous with being unable to secure and follow such an occupation. Indeed, there is a dispute as to whether the Veteran is capable of employment. A May 2009 VA treatment record notes that he is permanently unemployable. This was attributed to asthma and "MH," which appears to be a reference to mental health. No probative value can be assigned to the conclusion made. An explanation is required, but none was provided. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120 (2007). In contrast, the SSA fully explained its September 2006 and December 2008 conclusions that the Veteran is capable of working. Indications by him that the SSA deemed him too disabled to work, though competent for the same reason as aforementioned, are not credible because they are inconsistent with the SSA records. Indications to the contrary by his representative thus also are refuted. Of parenthetical note is that, given his age, any compensation received by the Veteran from the SSA may be for retirement rather than disability. The SSA records show that his disabilities were deemed not severe enough to keep him from working after his records, to include those from Dr. J.W.'s and VA treatment records, were reviewed and he was interviewed and assessed upon examination. The disabilities considered included a heart problem, hypertension, type II DM, eye problems, COPD, sleep apnea, gastroesophageal reflux disease (GERD), right carpal tunnel syndrome, posttraumatic stress disorder (PTSD), and depression. The first four are service-connected disabilities or essentially the equivalent thereof. However, the Veteran is not service-connected for the rest of the listed disabilities. Taking nonservice-connected disabilities into consideration along with service-connected disabilities is allowable by the SSA, but it is reiterated that it is not by VA. The purpose of these entities, though both are run by the government, indeed is not the same. What matters to VA is whether or not the Veteran is capable of a job he is qualified for notwithstanding his service-connected disabilities. VA accordingly is not bound by SSA determinations. Collier v. Derwinski, 1 Vet. App. 413 (1991). The Board agrees with the SSA determinations insofar as they deemed the Veteran capable of employment despite many of his service-connected disabilities, however. The Veteran's hemorrhoids have little impact on his ability to work. Indeed, it is reiterated that they are rated noncompensable when ratings represent as far as practicably can be determined average impairment in earning capacity. Hypertension also has little impact on the Veteran's ability to work. All indications are that it is well-controlled with medication. The Veteran's other service-connected disabilities concededly interfere with his ability to work but do not prevent work altogether. The medication taken and the restricted diet followed for his type II DM with erectile dysfunction can be undertaken on the job. Visits to his diabetes care provider and for erectile dysfunction require only some time off work. A February 2005 VA medical examination and the June 2005 VA medical examination are in agreement with VA treatment records in showing that the Veteran's cataracts limit his vision only minimally. He reported at the December 2008 VA medical examination that his xerosis, which affects the skin on his face, causes him to want to avoid being seen. Yet no symptoms which could hinder work were identified during this examination or at a February 2005 and the July 2005 VA medical examinations. The Veteran reported a constant ringing or buzzing in his ears and difficulty hearing in the presence of background noise at the January 2010 VA medical examination. This report is competent for the same reason as above and is credible because there is no reason for doubt. However, his speech recognition was 96 percent in each ear. Of greater impact on the Veteran's ability to work are his peripheral neuropathy of the lower extremities, right knee disability, and CAD. The peripheral neuropathy of the lower extremities and right knee disability were reported by him to cause numbness, tingling, being cold, weakness, pain, and difficulty standing for prolonged periods, walking, climbing stairs, squatting, and kneeling at a February 2005 VA medical examination and VA medical examinations in July 2005, January 2008, and December 2008. His CAD was reported to cause pain, dizziness, shortness of breath, and fatigue at these examinations. Findings of this nature were made at these examinations as well as in VA treatment records. The Veteran's reports thus not only are competent for the same reason as above but also are credible. Yet the overall effect of the aforementioned is to prevent only physical positions. Sedentary positions would be impacted but would not be prevented by altered leg sensation, difficulty maneuvering, shortness of breath, and fatigue. The Veteran drove a bus or operated a train, with at least some supervisory responsibilities, for 29 years before spending just over a year working for a car rental company. He completed at least some college. With this history, he is suited for at least some sedentary work. Additionally, the weight of the medical opinions favors finding that the Veteran cannot due physical work but can do sedentary work notwithstanding his service-connected disabilities. The determination at a February 2005 VA medical examination once again was that he was prohibited only from doing strenuous physical work due to his type II DM and associated complications. Dr. J.W.'s June 2005 statement contains the opinion that the Veteran should not be employed due to the need for close monitoring to control his blood sugar. However, no further explanation was provided. It is not apparent without such an explanation how close monitoring could not be undertaken simultaneous with the Veteran performing sedentary work. Dr. J.W.'s opinion therefore is of no probative value. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120 (2007). It was opined at the July 2005 VA medical examination that the Veteran could perform common activities to include climbing stairs at a moderate pace notwithstanding his service-connected disabilities. Sitting undisputedly is a common activity. At the January 2008 VA medical examination, it was opined that he could do light activities around the home notwithstanding his CAD and peripheral neuropathy. The limitation of around the home appears misplaced given that examples of what his is able to do included walking one block. In any event, such limitation does not address sitting for work. It further is of little probative value since it is in disagreement with the aforementioned preceding opinions as well subsequent opinions made. It was opined at the December 2008 VA medical examination that the Veteran's service-connected disabilities prevented only prolonged standing, ambulation, and physical exertion. They do not prevent sedentary work, in other words. It finally was opined at the September 2011 VA medical examination that the Veteran cannot do physical labor due to his type II DM and associated complications but that sedentary labor was permissible. That no single medical examination is complete with an opinion considering the effect of all of the Veteran's service-connected disabilities on his ability to work is acknowledged. However, such is not required. Geib v. Shinseki, No. 2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013). His contention that he cannot work (construed to relate to both physical and sedentary work) is acknowledged. Yet he indicated at the September 2011 VA medical examination that he quit working due to multiple service-connected disabilities as well as non-service-connected COPD. He also testified at the October 2010 hearing that he was incapable of employment due to his type II DM, and to his nonservice-connected COPD and arthritis. His belief that he quit working and cannot secure and follow a substantially gainful occupation is impermissibly based on all of his disabilities instead of only those that are service-connected-and is outweighed by the aforementioned evidence. Consideration has been given to the application of the benefit of the doubt in determining that a scheduler TDIU is not warranted. However, the preponderance of the evidence is against the award of a TDIU. It follows that there is no doubt to resolve to the Veteran's benefit. A TDIU is denied. ORDER The reduction to 20 percent being void, restoration of a 40 percent rating for service-connected type II DM with erectile dysfunction is granted. This restoration is effective April 29, 2005, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 40 percent for service-connected type II DM with erectile dysfunction is denied. A TDIU is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs