Citation Nr: 1717128	
Decision Date: 05/18/17    Archive Date: 06/05/17

DOCKET NO.  09-39 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

1.  Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy.  

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


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

B. Garcia, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1969 to August 1970.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The Board notes that although its October 2014 remand order provides that the matters are on appeal from a June 2006 rating decision, this appears to be in error.  The RO denied an increased rating for diabetes mellitus and entitlement to a TDIU in a June 2006 rating decision, and the Veteran filed a notice of disagreement in August 2006.  Following the issuance of a statement of the case in December 2006, the Veteran never perfected an appeal of these claims.  In May 2008, the Veteran, in pertinent part, submitted a new claim for an increased rating for diabetes mellitus and raised the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  The RO denied the Veteran's claims in the November 2008 rating decision noted above.  

The Veteran's increased rating claim was previously before the Board in October 2014, when it was remanded for additional development.  

The Board observes that in September 2016, VA treatment records dated from December 2013 were added to the claims file and were not considered by the Agency of Original Jurisdiction (AOJ) with respect to the issue of entitlement to a TDIU.  Specifically, the September 2016 supplemental statement of the case only addresses the issue of entitlement to an increased rating for diabetes mellitus.  Although these files were added to the Veteran's claims file without a waiver of initial review of the evidence by the AOJ, the Board finds that it may proceed to adjudicate the instant TDIU claim with no prejudice to the Veteran, as it is granting entitlement to a TDIU, effective October 16, 2009.  

The issue of entitlement to service connection for hydronephrosis as secondary to diabetes mellitus has been raised by the record in a July 2016 VA renal note, but it has not been addressed by the AOJ.  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).  


FINDINGS OF FACT

1.  For the entire period on appeal, the Veteran's diabetes mellitus has required an oral hypoglycemic agent, insulin, and a restricted diet; it has not required regulation of activities.  

2.  The Veteran's service-connected disabilities have met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since October 16, 2009.  

3.  The Veteran's service-connected disabilities did not meet the schedular criteria under 38 C.F.R. § 4.16(a) prior to October 16, 2009, and the criteria for referral for extraschedular consideration are not met for that period.

4.  Beginning October 16, 2009, the Veteran has been unable to secure or follow substantially gainful employment due to service-connected disabilities.


CONCLUSIONS OF LAW

1.  For the entire period on appeal, the criteria for an increased rating in excess of 20 percent for diabetes mellitus have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2016).  

2.  Beginning October 16, 2009, the criteria for entitlement to a TDIU have been met; referral to the Director of Compensation for extraschedular consideration is not warranted prior to this date.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Stegall Compliance

The Board previously remanded the Veteran's claim to afford the Veteran's representative an opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case.  Following the Board's remand, the Veteran's representative submitted a VA Form 646 in June 2016.  Thus, the Board finds substantial compliance with its prior remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that the Board errs as a matter of law when it fails to ensure compliance with its prior remand instructions).  

II.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

The RO provided written notice regarding establishing claims for increased ratings and for a TDIU in June 2008.  Thus, VA has fulfilled its duty to notify the Veteran.  VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate his claims.  See 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  The record includes VA and non-VA medical treatment records, Social Security Administration records, employer statements, and lay statements.  

With respect to private treatment records, the Board notes that beginning in March 2010, the Veteran's VA primary care treatment records include a list of several non-VA medical and dental providers, including primary care physician Dr. Golden, cardiologist Dr. Shatkin, endocrinologist Dr. Rostagi, and podiatrist Dr. Katz.  Treatment records from each of these physicians have been obtained and associated with the Veteran's claims file.  Additionally, a November 2012 VA podiatry note and a January 2013 VA endocrinology note provide that due to loss of private insurance, the Veteran became dependent on VA for his medical care.  Neither the Veteran nor his representative have indicated that there are outstanding private treatment records from these or other medical providers.  Moreover, the record does not otherwise reflect that there are outstanding private treatment records that would substantiate the Veteran's claims.  As such, the Board finds that it has no further duty to obtain private medical treatment records.  

VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Since filing his claim in May 2008, the Veteran has been afforded VA examinations pertaining to his service-connected disabilities in June 2008, August 2008, January 2010, May 2012, July 2012, April 2014, January 2016, and February 2016.  A review of the examination reports indicates that the examiners reviewed the Veteran's medical records, conducted examinations of the Veteran, and offered medical opinions based on examinations of the Veteran, his medical history, and the examiners' expertise.  The examination reports are therefore thorough and fully adequate with respect to addressing the current severity of the Veteran's diabetes mellitus, in addition to the impact of the Veteran's service-connected disabilities on his occupational functioning, particularly when considered as a whole.  Therefore, an additional medical examination or opinion is not necessary to decide the instant claims.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (providing that a medical opinion is adequate when it is based upon the veteran's prior medical history and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be "fully informed").  

As the Veteran has not identified any additional relevant evidence concerning his claims, the Board concludes that no further assistance in developing pertinent facts is required for VA to comply with its duty to assist.  

III.  Entitlement to an Increased Rating

	Legal Criteria

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  See generally 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.27.  

VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  

The Veteran's diabetes mellitus is currently assigned a 20 percent rating pursuant to Diagnostic Code 7913.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  Under Diagnostic Code 7913, a 20 percent disability rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet.  Id.  To satisfy the criteria for the next highest disability rating of 40 percent, diabetes mellitus must require insulin, a restricted diet, and regulation of activities.  Id.  A 60 percent disability rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalization per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  Id.  A 100 percent disability rating is warranted when diabetes mellitus requires 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.  

The term "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities."  See id. (defining the term within the criteria for a 100 percent rating); see also Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007).  Establishing the "regulation of activities" criterion requires competent medical evidence showing that restriction of occupational and recreational activities is necessary to control a claimant's diabetes.  See Camacho, 21 Vet. App. at 363-64.  

The rating criteria for diabetes mellitus are successive, meaning that the evaluation for each higher disability rating includes the criteria of each lower disability rating.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  Thus, if a component is not met at any one level, the claimant can only be assigned a disability rating based on the level that does not require the missing component.  Id.  

Compensable complications of diabetes are to be evaluated separately uncles they are a part of the criteria used to support a 100 percent disability rating for diabetes mellitus.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1.  Noncompensable complications of diabetes mellitus are considered a part of the diabetic process under Diagnostic Code 7913.  Id.  

	Factual Background and Analysis

The Veteran is seeking a disability rating in excess of 20 percent for his diabetes mellitus disability.  As set forth in his March 2009 notice of disagreement, the Veteran contends that he is entitled to a 40 percent rating for his disability.  

A July 2007 private medical report from endocrinologist Dr. R. Rastogi provides that the Veteran had uncontrolled diabetes mellitus, for which he was poorly-compliant.  The Veteran's diet control was noted to be suboptimal, and he did not exercise.  At the time of this July 2007 treatment, the Veteran refused to go on insulin because he was a truck driver.  The report reflects that his medications included Prandin, an oral hypoglycemic agent.  The report provides that both diet control and exercise were emphasized to the Veteran, and weight loss was necessary.  August 2007, December 2007, and January 2008 follow-up treatment records indicate that the Veteran's treatment plan for diabetes mellitus included diet control, exercise, weight loss, and continued use of an oral hypoglycemic agent.  

A March 2008 private treatment record from Dr. Rastogi provides that the Veteran began using insulin for his diabetes mellitus.  Treatment records from Dr. Rastogi dated between March and June 2008 show that his treatment plan included an oral glycemic agent, insulin, diet control, weight loss, and exercise.  

The Veteran was afforded a VA diabetes examination in June 2008.  According to the examination report, the Veteran's history included being admitted to the hospital for one week with elevated blood sugar.  The Veteran reported increased urination, thirst, increased appetite, blurred vision, and loss of strength.  He was discharged on insulin.  The Veteran then began taking Actos twelve years prior, Prandin eight years prior, and Metformin two years prior.  The Veteran began taking Lantus insulin daily in March 2008 due to uncontrolled blood sugar.  The Veteran was noted to have increased his exercise on a daily basis; he was walking one-eighth of a mile at a fifteen-degree incline.  The Veteran had follow-up visits with his primary care physician every three months, and he had follow-up visits with his endocrinologist every six weeks since 2006.  There was no history of diabetic ketoacidosis or hospital admissions since the prior admission.  The Board notes that based on a November 2002 VA diabetes examination report, it appears that this hospital admission occurred in or around 1992, when the Veteran was initially diagnosed with diabetes.  

The Veteran reported numbness, tingling, and burning sensations in his right foot.  There was no dryness of his extremity skin or any evidence of a fungal infection.  The Veteran had soft to firm erections once a week and was unable to participate in sexual intercourse with vaginal penetration.  There was no penile deformity, and no treatment was advised.  There was also no anal pruritus or loss of strength.  Based on a neurological examination, the Veteran's muscle strength was normal.  He exhibited normal touch, position, and vibration sense in the extremities, with the exception of the right lower extremity, which had reduced vibration sense at the distal aspect when compared to the left lower extremity.  The Veteran had a non-antalgic gait; heel-toe and tandem gait were normal.  There was no dryness of the skin or ulceration noted, nor was there functional impairment of the bowel or bladder.  The examiner rendered diagnoses of diabetes mellitus, poor glycemic control; essential hypertension due to normal creatinine; early peripheral sensory neuropathy; and erectile dysfunction that was noted as being at least as likely as not related to the Veteran's diabetes mellitus.  Additionally, the diagnoses include no evidence of diabetic retinopathy or nephropathy, and no chest pain or heart attack.  

In a September 2008 general medical report that was completed for purposes of obtaining Social Security Disability benefits, Dr. Rastogi indicated that the Veteran's medical history included type II diabetes and diabetic neuropathy.  The Veteran had been Dr. Rastogi's patient since October 2006, and he received follow-up treatment from Dr. Rastogi every three- to twelve weeks.  The Veteran was using insulin.  Dr. Rastogi indicated that based on his medical findings, he was unable to provide a medical opinion regarding the Veteran's ability to perform work-related activities, such as lifting and carrying, standing and/or walking, sitting, or pushing and/or pulling.  He did not indicate why he was unable to provide such opinion.  However, Dr. Rastogi noted that there were other conditions that might limit the Veteran's ability to perform work-related activities, specifically, the Veteran was a commercial truck driver.  

In an October 2008, Dr. Rastogi completed a diabetes mellitus impairment questionnaire, which indicated that the Veteran's prognosis was fair to poor, depending on his ability to control his diet and blood sugars, in addition to his ability to exercise.  The Veteran's symptoms of diabetes mellitus included numbness in his feet and legs, generalized muscle weakness, swelling of the feet, vascular disease/leg cramping, rapid heartbeat, loss of manual dexterity, difficulty walking, dizziness/loss of balance, headaches, hyper/hypoglycemic attacks, fatigue, general malaise, nausea/vomiting, episodic vision blurring, and difficulty thinking/concentrating.  The Veteran was noted as having hypoglycemia unawareness.  The Veteran's primary symptoms were hypoglycemic symptoms, numbness in his feet and legs, and excessive fatigue.  According to Dr. Rastogi, the Veteran's symptoms and functional limitations were reasonably consistent with his physical and/or emotional impairments described in the report.  

Dr. Rastogi did not estimate the Veteran's residual functional capacity when considering functional impairments due to diabetes mellitus.  However, Dr. Rastogi noted that the Veteran's impairments were ongoing and were expected to last at least twelve months.  Additionally, emotional factors contributed to the severity of the Veteran's symptoms and functional limitations, as the Veteran was concerned about losing his job, not being able to work, and financial difficulties.  Dr. Rastogi indicated that the Veteran was capable of tolerating moderate work stress, noting that the Veteran worked for 45 years in life and 25 years as a truck driver.  The Veteran frequently experienced pain, fatigue, or other symptoms severe enough to interfere with attention and concentration, and his impairments were likely to produce "good days" and "bad days."  When asked to estimate, on average, how often the Veteran was likely to be absent from work as a result of the impairments or treatment, Dr. Rastogi wrote that the Veteran was "unable to work at all."  

An October 2010 VA primary care not indicates that the Veteran's Prandin was replaced with Glimepiride due to mildly-elevated bilirubin and that bilirubin was reported to be better.  The Veteran denied hypoglycemic episodes.  The impressions included insulin-dependent diabetes mellitus.  

A May 2011 VA primary care note states that the Veteran had hypoglycemia in the fall and that his diabetes medications were adjusted to increase his sugars.  He now had no hypoglycemia, and his medications were being modified to slowly reduce his blood sugars.  The impressions included insulin-dependent diabetes mellitus.  A February 2012 VA primary care note indicates that the Veteran's insulin-dependent diabetes mellitus was under optimal control.  

The Veteran was afforded a VA diabetes examination in May 2012.  According to the examination report, the Veteran's treatment for diabetes mellitus included restricted diet, prescribed oral hypoglycemic agent(s), and prescribed insulin (more than one injection per day).  The examiner indicated that the Veteran did not require regulation of activities as part of the medical management of diabetes mellitus.  The Veteran visited his diabetic care provider less than twice per month for episodes of ketoacidosis or hypoglycemic reactions.  In the twelve months preceding the examination, the Veteran had no episodes of ketoacidosis or of hypoglycemia requiring hospitalization.  The Veteran did not have progressive unintentional weight loss attributable to diabetes mellitus, nor did he have progressive loss of strength attributable to diabetes mellitus.  The recognized complications associated with the Veteran's diabetes mellitus were diabetic peripheral neuropathy.  Conditions that were as least as likely as not due to diabetes mellitus were erectile dysfunction and peripheral vascular disease.  The examiner opined that the Veteran's diabetes mellitus did not impact his ability to work.  

A November 2012 VA primary care note provides that the Veteran's insulin-dependent diabetes mellitus was well-controlled.  A January 2013 VA endocrinology consult record notes that the Veteran was eating three meals per day, and had lost significant weight with diet and exercise over the preceding year; however, he still exceeded his ideal weight.  The impressions included diabetes mellitus 2 vs. diabetes mellitus 1, apparently not very insulin resistant; over ideal weight, but able to lose weight with diet and exercise.  With respect to the Veteran's treatment plan, the physician noted that diet and exercise efforts to achieve weight loss remained important.  The Veteran was to continue eating three small meals per day, follow a no-added-salt and low-saturated fat diet for weight loss, and increase exercise throughout the day "as able."  

A May 2013 VA primary care record states that the Veteran's insulin-dependent diabetes mellitus was well-controlled.  A June 2013 VA primary nursing care note reflects that an exercise plan of 20 minutes per day 5 days per week was discussed.  The Veteran agreed to continue his regimen, and he was praised for his health efforts.  A June 2013 VA endocrinology note provides that his blood sugars were too low given the amount of insulin he was using.  The Veteran was eating three meals per day and was succeeding in losing weight.  He was staying "very active" throughout the day, including "a lot" of walking or bicycle riding.  The impressions included diabetes mellitus 2, over-treated with insulin, close to ideal weight.  The treatment plan included potentially adjusting insulin to once per day.  The Veteran was to continue eating three meals per day, consisting of foods with no added salt, and a bedtime snack.  The Veteran was to increase his exercise throughout the day "as able."  A December 2013 VA primary care note indicates that the Veteran's insulin-dependent diabetes mellitus was well-controlled.  

An April 2015 VA nutrition note indicates that the Veteran was seen due to his diabetes and being overweight.  With respect to physical activity, the Veteran was walking with a cane for balance and had neuropathy in his feet; additionally, it was noted that walking or biking might cause exhaustion.  His goals included establishing a routine exercise program for short spurts of exercise on his home treadmill.  An April 2015 VA pharmacy note provides that the Veteran had no complaints.  There were a few random episodes of hypoglycemia noted.  He was being followed by a VA dietitian and was reducing his carbohydrate intake and meal portions.  As for exercise, the Veteran was walking daily.  The assessments included diabetes mellitus, with a notation that blood sugar was now-controlled and the Veteran was reducing carbohydrate intake.  

An August 2015 VA nutrition note provides that the Veteran was seen for his diabetes, hypertension, and being overweight.  The Veteran was eating three meals per day and was trying to avoid salty foods.  With respect to physical activity, the dietitian noted that yardwork was "too much" and wrote "activities of daily living only."  An August 2015 VA pharmacy note indicates that the Veteran had several hypoglycemic episodes due to low carbohydrate intake or working in the yard, which were treated with a meal.  His exercise included walking or working in his yard.  Assessments included diabetes mellitus, with a notation that the Veteran's blood sugar had been elevated lately due to eating late-night, high-carbohydrate snacks and that his PM blood sugar fluctuated due to inconsistent physical activity.  The treatment plan included following up with the dietician and eating a snack when working.  Weight loss, dietary modifications, and exercise were encouraged.  

An October 2015 VA pharmacy note indicates that there had been no hypoglycemic episodes.  The Veteran was trying to reduce his meal portions, and exercise included walking.  The assessments included diabetes mellitus, with a notation that blood sugars were elevated due to high carbohydrate intake.  The Veteran was to follow-up with the dietician; weight loss, dietary modifications, and exercise were encouraged.  A December 2015 VA pharmacy note provides that there were no hypoglycemic episodes.  With respect to exercise, the treatment record notes that the Veteran was staying active.  A December 2015 VA primary care note provides that the Veteran's treatment plan for diabetes mellitus included walking five minutes twice daily, as tolerated.  

A February 2016 VA pharmacy note provides that the Veteran presented with no complaints.  There was one random episode of hypoglycemia noted, with a notation that the Veteran was busy working around the house or car that day.  The Veteran was to follow-up with the dietitian, and while performing physical activities, take breaks and eat snacks.  A May 2016 VA pharmacy note provides that the Veteran presented with no complaints; however, there had been one random episode of nighttime hypoglycemia at night due to an unknown reason.  His fasting blood sugars were noted as "mostly acceptable."  A low-carbohydrate diet was discussed, and the Veteran was told to eat a bedtime snack to prevent nocturnal hypoglycemia.  

A June 2016 VA primary care note provides that in the preceding year, the Veteran was walking less; specifically, while he used to walk in a dedicated fashion, he was now walking when able.  The Veteran reported that he was walking less because he had less energy.  Assessments included insulin-dependent diabetes mellitus, worsening control and diet, begin walking five minutes twice daily as tolerated.  A July 2016 VA pharmacy notes there had been a few random readings of hypoglycemic episodes.  The Veteran's assessments included type 2 diabetes mellitus, blood sugars mostly at goal.  

As set forth in an August 2016 VA treatment record, the Veteran reported hypoglycemia during the preceding evening.  The Veteran woke up with blood sugar of 44, felt weak, and ate cereal with milk and a packet of sugar.  The Veteran admitted that his dinner was smaller than normal.  In the morning, his blood sugar was 88 and he felt well.  The record provides that this had occurred in the past with smaller meals, but the Veteran did not adjust his NPH insulin dose after dinner.  He was advised to adjust his evening NPH insulin dose based on meal size.  A September 2016 VA primary care note includes an assessment of insulin-dependent diabetes mellitus, along with a notation that the Veteran was walking five minutes twice daily as tolerated.  The Veteran was educated regarding working hard on diet, exercise, weight loss, and diabetes control.  

Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's diabetes disability at any time during the course of the instant appeal.  Specifically, although the record establishes that the Veteran's diabetes mellitus has required an oral hypoglycemic agent, insulin, and restricted diet throughout the period on appeal, there is no evidence in the record demonstrating regulation of activities so as to warrant a 40 percent rating or higher.  

As set forth above, to satisfy the criteria for a 40 percent disability rating for diabetes mellitus, there must be evidence demonstrating that the disorder requires insulin, a restricted diet, and regulation of activities.  38 C.F.R. § 4.119, Diagnostic Code 7913.  In light of the conjunctive "and" in the criteria for a 40 percent disability rating under Diagnostic Code 7913, all criteria must be met to establish entitlement to a 40 percent rating.  See Camacho, 21 Vet. App. at 366.  
Moreover, establishing "regulation of activities" requires competent medical evidence showing that avoidance of strenuous occupational and recreational activities is necessary to control the claimant's diabetes.  See 38 C.F.R. § 4.119, Diagnostic Code 7913; Camacho, 21 Vet. App. at 363-64.  Here, the May 2012 VA diabetes examiner specifically indicated that the Veteran's diabetes mellitus did not require regulation of activities as part of the medical management of his diabetes mellitus.  Additionally, the competent medical evidence of record does not otherwise provide any indication that the Veteran has been restricted from performing strenuous occupational and recreational activities to control his diabetes.  Instead, the record reflects that throughout the course of the appeal, the Veteran was either exercising regularly or was encouraged by private and VA medical providers to increase his exercise.  As set forth above, private records from Dr. Rastogi show that the Veteran's treatment plan for diabetes mellitus included exercise and weight loss.  VA endocrinology notes dated in January and June 2013 indicate that the Veteran was succeeding in losing weight due to diet and exercise.  Moreover, the January 2013 record notes that the Veteran's diet and exercise efforts to achieve weight loss remained important.  The June 2013 record states that the Veteran was staying very active through the day, as he was doing a lot of walking or bike riding, and he was encouraged to increase his exercise through the day as able.  VA treatment records continue to reflect that medical providers encouraged that the Veteran continue or increase his exercise as tolerated.  

The Board acknowledges that an August 2015 VA nutrition note indicates that with respect to physical activity, a VA dietician wrote that yardwork was "too much," and that the Veteran was limited to performing activities of daily living.  However, there is no indication that the Veteran was restricted from performing yardwork to control his diabetes mellitus.  In this regard, the Board finds significant that in a VA pharmacy note from the same date, the VA clinical pharmacy specialist noted that the Veteran had several hypoglycemic episodes due to low carbohydrate intake or working in the yard, which were treated with a meal.  Nevertheless, the treatment plan notes that exercise was encouraged.  Additionally, although some VA treatment records reflect that the Veteran was instructed to take breaks or exercise "as tolerated," they do not suggest that the Veteran was restricted from exercising on account of his diabetes mellitus.  On the contrary, the Veteran's treatment plan for diabetes mellitus has continued to include exercise.  Thus, the record does not indicate that a medical professional has found avoidance of strenuous occupational and recreational activities to be necessary to control the Veteran's diabetes or that the Veteran was otherwise advised by a medical professional to avoid such activities on account of his diabetes mellitus.  

The Board has considered the Veteran's assertion that he is entitled to a 40 percent rating for diabetes mellitus.  However, the Veteran's contention is outweighed by the medical evidence of record.  See Caluza, 7 Vet. App. at 511.  As a lay witness, the Veteran is competent to describe observable symptoms of his diabetes and his medical history.  However, determining whether regulation of activity is required to control diabetes mellitus is beyond the scope of lay observation and requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Camacho, 21 Vet. App. at 363-4.  As set forth above, there is no competent evidence of record to support a finding that restriction of occupational and recreational activities has been medically necessary to control the Veteran's diabetes mellitus at any time during the pendency of the appeal.  As such, the objective medical evidence does not support a rating higher than 20 percent for the Veteran's diabetes mellitus disability.  

When applying the rating criteria, the evidence of record does not support a rating higher than 20 percent for the Veteran's diabetes disability, as the weight of the evidence is against a finding that the Veteran's diabetes mellitus has required regulation of activities at any time during the pendency of the appeal.  Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for diabetes mellitus at any time during the course of the appeal.  

	Other Complications

As noted above, VA is to evaluate compensable complications of diabetes mellitus separately unless they are part of the criteria used to support a 100 percent evaluation.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1 (adding that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913).  

The Veteran's May 2008 claim for an increased rating for diabetes mellitus noted that he had peripheral neuropathy of the bilateral lower extremities.  In a November 2008 rating decision, the RO initially denied entitlement to service connection for peripheral neuropathy of the bilateral lower extremities.  The RO subsequently grated service connection for mild diabetic neuropathy of the posterior tibial nerves of the bilateral lower extremities and assigned a 10 percent disability to each side, effective October 16, 2009.  However, as reflected in a February 2014 rating decision, clear and unmistakable error had been identified in both the November 2008 and February 2010 rating decisions due to the RO's failure to grant service connection in the November 2008 rating decision, and the effective date assigned in the February 2010 rating decision.  As such, the RO granted an earlier effective date of October 2, 2008 for mild diabetic neuropathy of the posterior tibial nerves of the bilateral lower extremities, each side rated as 10 percent disabling.  

The Board acknowledges that the record reflects that the Veteran was noted as having diabetic neuropathy or early peripheral sensory neuropathy prior to October 2, 2008, such as in the June 2008 VA examination report, which includes a diagnosis of early peripheral sensory neuropathy, and a September 2008 general medical report that was completed for the purposes of obtaining Social Security Disability benefits, in which Dr. Rastogi indicated that the Veteran's medical history included type II diabetes and diabetic neuropathy.  However, an August 2008 VA peripheral nerves examination report that was ultimately completed in October 2008 following EMG testing notes the Veteran's history of being a diabetic with numbness and tingling of the right foot with reduced perfusion of the right foot.  The Veteran had abnormal lower extremity circulation testing and reduced vibration sense in the distal right lower extremity.  The October 2008 EMG report was normal and showed no evidence of lower extremity motor or sensory neuropathy.  The diagnosis was no evidence of lower extremity peripheral neuropathy.  Based on a January 2010 VA examination report and March 2010 VA primary care note, it was not until fall 2009 that diabetic neuropathy was confirmed through both EMG results and symptomatology.  VA treatment records since that time continue to note a 2010 diagnosis of neuropathy, status post fall 2009 EMG.  Moreover, the Veteran has not reflected disagreement with the 10 percent rating that was assigned, or the effective date of October 2, 2008.  In light of this background, the Board concludes that no further discussion regarding the compensable ratings assigned to the Veteran's diabetic neuropathy of the bilateral lower extremities is necessary.  

As for the Veteran's peripheral vascular disease of the bilateral lower extremities, in February 2014, the RO granted service connection for these disabilities, effective May 29, 2008, the date of the Veteran's claim for an increased rating for diabetes mellitus.  The Veteran has not reflected disagreement with the noncompensable ratings assigned.  As such, the Board concludes that no further discussion regarding the ratings assigned to the Veteran's peripheral vascular disease of the bilateral lower extremities is necessary.  

In the February 2014 rating decision, the RO also granted service connection for the Veteran's diabetic retinopathy and assigned a noncompensable evaluation, effective July 2, 2010, the date of a VA optometry treatment record that includes an assessment of mild nonproliferative diabetic retinopathy without cotton-spot macular edema, left eye.  There is no indication of diabetic retinopathy prior to this date.  Moreover, the Veteran has not reflected disagreement with the noncompensable rating assigned, or the effective date of the award of service connection.  

However, as the noncompensable evaluation for diabetic retinopathy was assigned effective July 2, 2010, the date of a VA optometry treatment record that includes an assessment of mild nonproliferative diabetic retinopathy of the left eye, it is unclear whether the separate noncompensable rating assigned for diabetic retinopathy was intended to contemplate only the left eye.  The record reflects that at a January 2, 2015 VA optometry treatment, the Veteran was also diagnosed with moderate right eye nonproliferative diabetic retinopathy with cotton-spot macular edema.  Thus, the Board will consider whether the Veteran has compensable complications due to diabetic retinopathy of the right eye.  

Following the January 2015 VA treatment record, a February 2015 VA ophthalmology note indicates that the Veteran received laser treatment for right eye macular edema.  An April 2015 VA ophthalmology treatment includes an assessment of diabetes mellitus with cotton-spot macular edema, right eye, status post focal laser, improved on exam, but still with hard exudates.  A December 2015 VA ophthalmology note indicates that the Veteran's right eye edema was resolved on examination and optical coherence tomograph.  His vision was stable and there was a decrease in hard exudates that might not completely resolve.  

The Veteran was afforded a VA eye conditions examination in January 2016.  According to the examination report, the Veteran's diagnoses included diabetic retinopathy, ptosis, dry eye, vitreous floaters (diagnosed January 2014), and visual field contraction.  The Veteran reported his condition had worsened in the right eye, where the laser procedure was performed.  The Veteran's uncorrected distance vision in both eyes was 20/50, and his corrected distance vision in both eyes was 20/40 or better.  The Veteran's uncorrected near vision in his right eye was 20/200 and 20/100 in his left eye.  The Veteran's corrected near vision in both eyes was 20/40 or better.  The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with near vision being worse.  The Veteran did not have astigmatism or diplopia.  Although the Veteran's optic disc and macula were normal bilaterally, his vessels were abnormal due to diabetic retinopathy, he had vitreous floaters bilaterally, and his periphery exhibited minimal background diabetic retinopathy.  

According to the examination report, visual field testing was performed using the Goldman's equivalent III/4e target, and the Veteran had a visual field defect.  The Veteran had contraction of a visual field, but he did not have loss of a visual field or scotoma.  The Veteran did not have legal blindness based upon visual field loss.  

The Veteran's eye conditions included ptosis of both eyelids, but his decrease in visual acuity was not attributable to ptosis, as his visual acuity did not improve upon raising his eyelids.  The Veteran's eye conditions included dry eye.  According to the examiner, the Veteran's visual impairment was attributable to his dry eye, but it did not cause scarring or disfigurement.  His eye conditions also included preoperative cataracts in both eyes.  There was no aphakia or dislocation of the crystalline lens.  The Veteran's decrease in visual acuity or other visual impairment was attributable to his cataracts; specifically, his cortical and nuclear cataracts were significant enough that they were more likely than not causing a decrease in visual acuity.  The examiner found that the Veteran's diabetic retinopathy was more likely than not causing a decrease in visual acuity.  No other eye conditions were noted.  In the twelve months preceding the examination, the Veteran did not have any incapacitating episodes that were attributable to any eye condition.  The examiner opined that the Veteran's cataracts, vitreous floaters, ptosis, and dry eye were less likely than not related to his diabetic retinopathy.  According to the examiner, the Veteran's visual field contraction was more likely than not related to the Veteran's ptosis and his diabetic retinopathy.  The examiner opined that the Veteran's eye condition impacted his ability to work.  Specifically, diabetic retinopathy can cause reduced vision, making it more difficult to perform certain tasks, such as computer work and reading small print.  

In light of the above evidence, there is no indication that complications due to the Veteran's diabetic retinopathy of the right eye have warranted a compensable evaluation at any time during the course of the appeal.  Evaluations of visual impairment are based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  See 38 C.F.R. § 4.75(a).  When considering the Veteran's visual acuity on the basis of corrected distance vision, as prescribed by 38 C.F.R. § 4.76(b), the Veteran's corrected distance vision was 20/40 in each eye during the January 2016 VA eye conditions examination.  As such, the Veteran does not meet the schedular criteria for a compensable evaluation for diabetic retinopathy of the right eye based on impairment of visual acuity.  See 38 C.F.R. § 4.79, Diagnostic Code 6066 (providing that to meet the 10 percent criteria, one must have vision in one eye at 20/100, and the other at 20/40; vision in one eye at 20/70, and the other at 20/40; or vision in one eye at 20/50, and the other at either 20/50 or 20/40).  Additionally, neither the January 2016 VA examination report nor any other medical evidence of record indicates that the Veteran has loss of visual field or diplopia.  As such, a compensable rating based on impairment of visual field or muscle function is not warranted.  See 38 C.F.R. §§ 4.77, 4.78, 4.79, Diagnostic Codes 6080-81, 6090.  

Additionally, while the January 2016 eye examination report reflects that the Veteran's eye conditions include cataracts, ptosis, vitreous floaters, and dry eye, the record is against a finding that these are complications of his diabetic process.  Specifically, the examiner opined that his cataracts, ptosis, vitreous floaters, and dry eye were less likely than not related to his diabetic retinopathy.  As there is no evidence suggesting that these conditions are related to the Veteran's diabetes or his diabetic retinopathy, there is no basis for considering any of these conditions as part of the diabetic process under Diagnostic Code 7913 or for assigning a compensable evaluation for these conditions as complications of diabetes mellitus.  

The Veteran's rating for diabetes mellitus under Diagnostic Code 7913 includes noncompensable erectile dysfunction as a complication of diabetes mellitus.  Here, there is no indication in the record that a compensable evaluation for the Veteran's erectile dysfunction is warranted.  As set forth in a May 2012 VA male reproductive system examination report, the only diagnosis rendered was erectile dysfunction.  Veteran did not have a voiding dysfunction, nor did he have a history of recurrent symptomatic urinary tract or kidney infections.  The Veteran declined a physical examination, but he reported normal anatomy with no penile, testicular, or epididymal deformity or abnormality.  The examiner opined that the Veteran's erectile dysfunction did not impact his ability to work.  Additionally, VA treatment records, such as a November 2012 VA primary care treatment record and a June 2013 VA endocrinology record, have characterized the Veteran's erectile dysfunction as "minimal" and have noted that he declined a prescription.  In light of this background, the record contains no medical or lay evidence suggesting that the Veteran has a deformity of the penis with loss of erectile power, which is required for a compensable rating for erectile dysfunction.  See 38 C.F.R. § 4.115b, Diagnostic Code 7522.  As such, there is no basis for assigning a compensable rating for erectile dysfunction at any time during the pendency of the appeal.  

A July 2016 VA renal consultation report indicates that the Veteran had been referred due to his creatinine levels.  The Veteran had no trouble voiding.  The treating provider wrote that it did not appear that the Veteran had cardiac or urologic problems.  The impression was that the Veteran's elevated creatinine in June 2016 might have simply been a response to an upper respiratory infection while on ACE and a diuretic.  The Veteran "clearly [did] not have diabetic retinopathy."  The Board notes that while the treating physician wrote "diabetic retinopathy," that appears to be a typographical error, and it is assumed that the treating physician intended to write "nephropathy."  Additionally, a September 2016 VA primary care note indicates an assessment of elevated liver test: resolved-now improved diabetes mellitus control.  As such, the record does not suggest that the Veteran has had diabetic nephropathy at any time during the course of the appeal; thus, there is no basis for considering nephropathy as part of the diabetic process under Diagnostic Code 7913 or for assigning a compensable evaluation for nephropathy as a complication of diabetes mellitus.  

While the Veteran was not diagnosed with nephropathy, the consultation report provides that a renal ultrasound performed in July 2016 showed moderate unilateral hydronephrosis (right side).  As it is unclear whether this might be related to the Veteran's diabetes mellitus, the Board has referred the issue of possible service connection for hydronephrosis as secondary to diabetes mellitus to the AOJ, as the AOJ must address this issue in the first instance.  The Board has considered whether adjudication of this matter should be deferred until a determination has been made as to whether service connection is warranted for this disorder.  However, regardless of whether a separate, compensable rating might be warranted for hydronephrosis as a residual of diabetes mellitus, a rating of 40 percent or higher for diabetes mellitus requires regulation of activity.  As there is no evidence of record indicating regulation of activity necessary to control diabetes mellitus, the Board finds that there is no prejudice to the Veteran in adjudicating the Veteran's claim for an increased rating while referring this issue for consideration by the AOJ.  Moreover, even if a compensable rating is warranted, there is no indication of hydronephrosis prior to July 2016, and therefore, it would also not have an impact on the Veteran's claim for a TDIU.  

In light of this background and the fact that there is otherwise no indication in the record of other complications attributed to the Veteran's diabetes mellitus, the Board finds that there is no basis for awarding separate, compensable ratings for complications of diabetes mellitus at any time during the course of the appeal.  

	Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated periods of hospitalization so as to render the regular schedular standards impractical.  See id.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  See id.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with established criteria.  

If the criteria reasonably describe a claimant's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is therefore adequate, and no referral is required.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his diabetes mellitus.  Comparing the level of severity and symptomatology of the Veteran's diabetes mellitus with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes treatment with oral hypoglycemic agents, insulin, and regulation of diet.  The 20 percent rating assigned contemplates these impairments.  Moreover, the fact that a particular symptom, such as occasional hypoglycemic episodes, may not be mentioned in the rating criteria does not, in itself, warrant extraschedular referral.  In this regard, although VA treatment records reflect some random hypoglycemic episodes, there is no indication that they have required hospitalization or otherwise demonstrate an exceptional or unusual disability picture.  On the contrary, the treatment records indicate that the Veteran's hypoglycemic episodes have routinely been treated through snacks or meals, or through adjusting medication.  Additionally, complications of the Veteran's diabetes mellitus, including peripheral neuropathy of the bilateral lower extremities, bilateral diabetic retinopathy, erectile dysfunction, and peripheral vascular disease of the bilateral lower extremities, are either separately evaluated under an appropriate diagnostic code, or, if not separately compensable, are included in the 20 percent rating assigned to the Veteran's diabetes mellitus, pursuant to Diagnostic Code 7913.  Additionally, with respect to the Veteran's erectile dysfunction, he receives special monthly compensation for loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a).  Thus, with respect to the Veteran's diabetes mellitus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).  

Finally, a claimant may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  Notably, in addition to his diabetes mellitus with erectile dysfunction and diabetic retinopathy, the Veteran is service-connected for PTSD, diabetic neuropathy of the lower extremities, and peripheral vascular disease of the lower extremities associated with diabetes mellitus type II.  However, neither the Veteran nor his representative has indicated any specific service-connected disabilities that are not captured by the schedular evaluations of his individual service-connected conditions.  

After applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds that there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  

IV.  Entitlement to a TDIU

	Legal Criteria

It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  See 38 C.F.R. § 4.16.  A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340(a)(1), 4.15.  

"Substantially gainful" employment is employment that is "ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage).  Marginal employment is not considered substantially gainful employment.  See 38 C.F.R. § 4.16(a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.").  

A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  See §§ 38 C.F.R. 3.340, 3.341, 4.16(a).  If there is only one such service-connected disability, it must be ratable at 60 percent or more.  38 C.F.R. § 4.16(a).  If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  Id.  Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a).  Id.  

Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).  

Finally, a TDIU claim presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  Thus, in evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19.  

	Factual Background and Analysis

As an initial matter, because the Veteran's claim for a TDIU is based in part on his diabetes disability and his service-connected complications of diabetes mellitus, the above-noted facts pertaining to the Veteran's claim for an increased rating for his diabetes disability are incorporated herein.  

The Veteran contends that he is unable to secure or follow any substantially gainful occupation due to service-connected disabilities, including PTSD, diabetes mellitus with erectile dysfunction and retinopathy, diabetic peripheral neuropathy of the bilateral lower extremities, and peripheral vascular disease of the bilateral lower extremities.  The Board finds that entitlement to a schedular TDIU is warranted as of October 16, 2009.  

In his May 2008 claim, the Veteran asserted that he lost his driving job with the federal Department of Transportation due to requiring insulin to treat his diabetes mellitus.  In his June 2008 TDIU application, submitted via a VA Form 21-8940, the Veteran reported that he last worked full-time in March 2008, which is when he contends that he became too disabled to work.  According to his application, he last worked 70 hours per week as a tractor trailer operator for Bradway Trucking, where he worked from 1987 to March 2008, with the exception of 2005, during which he maintains he did not work due to illness.  In a July 2005 VA Form 21-8940 that was filed in support of a previous request for a TDIU, the Veteran indicated that he worked full-time for Bradway Trucking from 1988 to December 2004; he stopped working for Bradway Trucking because the Department of Transportation would not allow insulin-dependent diabetics to operate commercial vehicles.  In the July 2005 application, the Veteran reported that prior to working for Bradway Trucking, he performed "small jobs" as a driver for a short period of time, and from 1973 to 1986, he worked for Kimble Glass as a fork lift machine operator.  According to his June 2008 application, he completed high school, but not any other higher education or training.  A February 2016 VA examination report indicates that the Veteran received his GED.  

A June 2005 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from Bradway Trucking indicates that the Veteran worked as driver and driving instructor for approximately 40-50 hours per week from June 1988 to December 2004.  According to the form, concessions were made to the Veteran by reason of his age or disability, specifically, work load reduction and varied job duties where possible.  The form provides that the Veteran's employment was terminated because he was no longer qualified by the Department of Transportation to perform his duties.  Another VA Form 21-4192 from Bradway Trucking that was received in July 2008 provides that the Veteran was employed from November 2005 to March 2008, with previous dates of employment as well.  The form does not provide the number of hours that the Veteran worked and does not indicate that any concessions were made to the Veteran by reason of age or disability.  The reason for the Veteran's termination was listed as diabetes.  Time lost during the twelve months preceding the Veteran's last date of employment was unknown.  

The Veteran's service-connected disabilities include diabetes mellitus, type II with erectile dysfunction and diabetic retinopathy, rated as 20 percent disabling since October 2001; PTSD, rated as 50 percent disabling beginning October 16, 2009, and 70 percent disabling since September 17, 2015; mild diabetic neuropathy of the posterior tibial nerve of the right and left lower extremities associated with diabetes mellitus, each side rated as 10 percent disabling from October 2, 2008 to September 24, 2013; mild diabetic neuropathy of the sciatic nerve (previously rated as mild diabetic neuropathy of the posterior tibial nerve) of the right and left lower extremities associated with diabetes mellitus, each side rated as 10 percent disabling beginning September 24, 2013; peripheral vascular disease of the right and left lower extremities associated with diabetes mellitus, each side rated noncompensable beginning May 29, 2008; and retinopathy associated with diabetes mellitus (also claimed as left eye), rated noncompensable from July 2, 2010 to September 17, 2015.  As reflected above, the Veteran's diabetic retinopathy is now encompassed within his rating for diabetes mellitus.  His combined evaluation for VA compensation purposes has been 20 percent beginning October 29, 2001; 40 percent beginning October 2, 2008; 70 percent beginning October 16, 2009; and 80 percent beginning September 17, 2015.  

Between May 29, 2008, the date of the Veteran's claim for an increased rating for diabetes mellitus and for a TDIU, and October 1, 2008, the Veteran had a 20 percent disability rating for diabetes mellitus and a combined rating of 20 percent.  From October 2, 2008 to October 15, 2009, the Veteran had a 20 percent disability rating for diabetes mellitus and a combined rating of 40 percent.  Thus, with respect to the relevant period on appeal, the Veteran did not meet the requirements for a schedular TDIU prior to October 16, 2009.  See 38 C.F.R. § 4.16(a).  Given the Veteran's 50 percent or higher rating for PTSD beginning October 16, 2009, and his combined ratings of 70 percent or more since that time, he has met the requirements for a schedular TDIU since October 16, 2009.  See 38 C.F.R. § 4.16(a).  

Even though the Veteran has met the threshold requirement for obtaining a schedular TDIU since October 16, 2009, the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment.  See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Additionally, although the Veteran's service-connected disabilities did not meet the percentage rating standard for a schedular TDIU prior to October 16, 2009, entitlement to a TDIU may be considered on an extraschedular during these periods.  See 38 C.F.R. § 4.16(b).  

An August 2008 VA peripheral nerves examination report that was ultimately completed in October 2008 notes the Veteran's history of being a diabetic with numbness and tingling of the right foot with reduced perfusion of the right foot.  The October 2008 EMG was normal and showed no motor or sensory neuropathy.  The diagnosis was no evidence of lower extremity peripheral neuropathy.  

An October 2008 SSA disability determination indicates that SSA found the Veteran to be disabled beginning March 8, 2008.  The primary diagnosis associated with SSA's determination was diabetic and other peripheral neuropathy; the secondary diagnosis was sleep-related breathing disorders.  The Board notes that the Veteran previously applied for service connection for sleep apnea and was denied.  In an October 2008 SSA physical residual functional capacity assessment, an SSA medical consultant provided the Veteran's current physical examinations were relatively unremarkable and showed no significant limiting objective findings.  However, a light lifting limitation was necessary to prevent fatigue and further erosion of the Veteran's functional capacity when considering his underlying conditions.  According to the consultant, when considering the Veteran's conditions, he would have been able to stand, walk, and sit through a regular workday given routine breaks, and the following limitations were necessary: a light lifting limitation (he could frequently lift 10 pounds and occasionally lift 20 pounds), no heights, limited stairs to minimize stress, and limited physical hazards.  

A March 2009 VA psychology note indicates that the Veteran sought treatment for his psychiatric symptoms.  The treating provider noted that the Veteran "certainly was affected" by his experiences in Vietnam, but he did not display severe psychological problems.  A treating provider gave a diagnosis of anxiety disorder, NOS, and assigned a GAF score of 55, reflecting moderate severity.  

In his October 2009 VA Form 9, the Veteran reiterated that he left his job at Bradway trucking due to taking insulin to treat his diabetes.  The Veteran maintained that federal law prohibited him from working.  

According to a January 2010 VA peripheral nerves examination report, the Veteran described paresthesias in his feet that burned at times.  His activities of daily living were independent, and he was able to walk without restrictions.  On examination, there was diminished monofilament sensation in the stocking distribution, and ankle reflexes were absent.  No atrophy was noted.  The diagnosis was mild diabetic neuropathy of the posterior tibial nerve distribution of both lower extremities.  

In May 2012, the Veteran was afforded several VA examinations:  the diabetes mellitus and male reproductive system examinations detailed above, in addition to a peripheral neuropathy examination and an artery and vein conditions examination.  The May 2012 peripheral neuropathy examination report lists a diagnosis of diabetic peripheral neuropathy, with a 2010 date of diagnosis.  The Veteran's symptoms, namely, right lower extremity tingling and numbness that began at the ankle and radiated to the thigh, were intermittent, occurred in the morning and evening, and resolved without intervention after approximately 30 minutes.  The Veteran did not take medication for his neuropathy, and he was able to ambulate without problems.  The Veteran had moderate intermittent pain at his right lower extremity, moderate paresthesias and/or dysesthesias at the right lower extremity, and numbness at the right lower extremity.  Based on neurologic testing, the Veteran's strength was normal throughout all systems tested.  Deep tendon reflex testing showed 1+ (decreased) reflexes at the left knee and ankle, and his reflexes were absent at the right knee and right ankle.  Light tough testing was normal throughout all systems tested, except for the Veteran's bilateral feet and toes, which showed decreased sensation.  There was no muscle atrophy.  With respect to his sciatic nerve, the Veteran had mild paralysis on the right side, and his left side was normal.  His femoral nerve was normal bilaterally.  The examiner opined that the Veteran's diabetic peripheral neuropathy did not impact his ability to work and noted that the Veteran did not have any subjective complaints of left lower extremity neuropathy.  

The May 2012 VA artery and vein conditions examination report lists a diagnosis of peripheral vascular disease.  The Veteran had no history of surgery for his peripheral vascular disease, nor had he otherwise undergone any revascularization procedure.  The Veteran's current signs and symptoms included claudication on walking more than 100 yards, in addition to trophic changes, that affected both sides.  The Veteran did not use any assistive devices as a normal mode of locomotion for his peripheral vascular disease.  According to the examiner, the Veteran's peripheral vascular disease did not impact his ability to work.  The Veteran was afforded another VA artery and vein conditions examination in July 2012.  The examination report provides that the Veteran had no current signs or symptoms that pertained to his peripheral vascular disease.  The examiner opined that it did not impact his ability to work, adding that the Veteran's condition was negative for significant clinical symptoms, and there were no claudication pains or other complications, such as tropic or ischemic changes of the lower extremities.  

A July 2012 VA primary care note reflects that the Veteran had positive depression and PTSD screenings, but he denied any suicidal ideations or plans.  The Veteran was referred to VA mental health in May 2013 following positive depression and PTSD screenings, in addition to the Veteran becoming "very angry" at times and saying that he would "like to kill someone."  The Veteran discussed his thoughts of harming others and stated that he has never made a plan to actually harm others.  He also stated that he chooses to avoid people because they do things that frustrate him.  The Veteran was given a diagnosis of anxiety disorder, NOS.  

In a September 2013 statement from the Veteran, he noted that he had been issued a cane from the VA due to an increase in problems in his feet.  

In April 2014, the Veteran was afforded VA peripheral neuropathy examination, in addition to an artery and vein conditions examination.  The peripheral neuropathy examination report indicates that the Veteran complained of slowly-progressing numbness, tingling, and pain in his bilateral lower extremities on a daily basis that was rated as a 5/10.  The Veteran had intermittent pain at his right lower extremity to a moderate degree, and at his left lower extremity to a mild degree.  The Veteran had paresthesias and/or dysesthesias, in addition to numbness, at both lower extremities to a mild degree.  The Veteran's strength was normal throughout, and deep tendon reflexes were measured at 1+ (decreased) at the bilateral knees and ankles.  Light touch testing was decreased at the right knee/thigh and the bilateral feet and toes; it was normal at the left knee/thigh and ankle/lower legs.  The Veteran had mild paralysis of the sciatic nerve bilaterally.  According to the examiner, the Veteran's peripheral neuropathy impacted his ability to work, as the Veteran had pain upon prolonged walking or standing.  

As set forth in the April 2014 artery and vein conditions examination report, the Veteran reported increased pain in both of his lower extremities that was worse with prolonged walking and was rated at 5/10.  The Veteran current signs and symptoms included claudication on walking more than 100 yards, bilaterally.  There were no noted trophic changes.  The Veteran was using a cane on a regular basis.  As for the functional impact of the Veteran's peripheral vascular disease on his ability to work, the examiner opined that it would result in pain with prolonged walking.  

The Veteran was afforded a VA PTSD examination in February 2016, which lists a diagnosis of PTSD.  According to the examination report, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity.  With respect to relevant occupational history, the Veteran stated that he retired because he was an insulin-dependent diabetic, and the Department of Transportation stated that he could not drive any more for safety reasons.  The Veteran's current symptoms included depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships.  The examiner wrote that follow-up treatment was necessary and that the Veteran could benefit from therapy and/or medication.  At the time of the examination, the Veteran did not appear to pose any threat or danger or injury to himself or to others.  

When considering the Veteran's service-connected disabilities and their impact on his occupational functioning, and affording the Veteran the benefit of the doubt, the evidence of record supports a finding that the Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation since October 16, 2009.  

Given the symptomatology and functional limitations described in VA medical opinions and examination reports, the Veteran is significantly limited by his PTSD and his service-connected physical disabilities.  VA mental health notes dated between March 2009 and May 2013 reflect moderate impairment due to the Veteran's psychiatric disorder, as supported by the GAF score of 55.  Additionally, they suggest that since the time the Veteran was awarded service connection for PTSD, his symptomatology has included anxiety, depressed mood, irritability, disturbances of motivation and/or mood, and occasional homicidal ideations with no actual plans to harm others.  The February 2016 VA PTSD examination report establishes that the Veteran's PTSD causes reduced reliability and productivity given symptoms such as depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty adapting to stressful circumstances.  Thus, in light of this medical evidence, VA treatment records and the February 2016 VA PTSD examination report reflect that the Veteran would be limited in terms of obtaining and securing physical or sedentary work as a result of his PTSD symptoms.  

In addition, the physical limitations from his diabetes mellitus type II and related complications, including diabetic neuropathy and peripheral vascular disease of the bilateral lower extremities, would limit him from prolonged walking and standing.  Moreover, the evidence of record provides that the Veteran's diabetic retinopathy would make it difficult for the Veteran to perform certain tasks, such as computer work and reading small print, which would therefore impact both physical or sedentary employment.  The Board acknowledges that VA examination reports dated prior to April 2014 include opinions that the Veteran's disabilities did not impact his ability to work.  However, with respect to the May 2012 VA examiner, it is not clear that she considered subjective symptoms such as fatigue, dizziness, and loss of balance, which had previously been associated with the Veteran's diabetes mellitus and/or complications of diabetes mellitus.  Therefore, the Board affords limited probative value to the examiner's opinion regarding impact of the Veteran's diabetes mellitus and peripheral neuropathy on his occupational functioning.  Thus, when resolving doubt in the Veteran's favor, the medical evidence of record supports a finding that his service-connected physical disabilities would preclude certain physical employment that involves prolonged walking and standing.  Moreover, given the indication that the Veteran would have difficulty with clerical tasks on account of his diabetic retinopathy, and the impact of his PTSD-related symptoms, which include depressed mood, anxiety, suspiciousness, near-continuous panic or depression, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, it is unlikely that he would be able to obtain and maintain a sedentary office or desk job with his service-connected disabilities.  Thus, when resolving doubt in favor of the Veteran, the record supports a finding that his service-connected disabilities have precluded him from securing or following a substantially gainful occupation since October 16, 2009.  

As set forth above, given the Veteran's individual and combined ratings during the pendency of the appeal, his service-connected disabilities do not meet the criteria for a schedular TDIU prior to October 16, 2009.  For the reasons set forth below, the Board finds that referral to the Director of Compensation Service for extraschedular consideration for the period prior to October 16, 2009 is neither warranted nor required, as the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities alone during this period.  See 38 C.F.R. § 4.16(b).  

Although the Veteran has maintained that his service-connected diabetes mellitus and service-connected complications of diabetes prevented him from securing and following a substantially gainful occupation prior to this date, this assertion is inconsistent with other, more probative evidence of record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  In this regard, the Board finds that the objective medical evidence of record offers the strongest and most persuasive evidence regarding the impact of the Veteran's service-connected disabilities on his occupational functioning prior to October 16, 2009.  Moreover, prior to October 16, 2009, the Veteran's service-connected disabilities did not include PTSD.  

The Board acknowledges that in the October 2008 diabetes mellitus impairment questionnaire completed by Dr. Rastogi, the Veteran would likely be "unable to work at all" on account of his diabetes mellitus.  However, Dr. Rastogi did not provide any rationale for his opinion, and he did not complete the portion of the questionnaire that addressed residual functional capacity.  Additionally, in a September 2008 SSA report that was also completed by Dr. Rastogi, he indicated that he could not provide, based on medical findings, a medical opinion regarding the Veteran's ability to do work-related activities.  However, he did note that with respect to other conditions that limited the Veteran's ability to do work, the Veteran was a commercial truck driver.  Thus, when considering these two reports together, it appears that Dr. Rastogi might have only been addressing the Veteran's ability to perform work as a commercial truck driver.  However, to the extent that that his October 2008 opinion was not limited to the Veteran's ability to perform such work, it nevertheless has limited probative value, as it is not supported by any rationale.  

With the exception of Dr. Rastogi's October 2008 questionnaire, there is no objective medical evidence of record that suggests the Veteran's service-connected disabilities would have prevented from obtaining and maintaining substantial gainful employment prior to October 16, 2009.  VA and private medical treatment records during the relevant period on appeal show that the Veteran received treatment for his diabetes mellitus prior to October 16, 2009; however, these records contain no findings suggesting any specific occupational impairment due to diabetes mellitus or service-connected complications of diabetes mellitus.  In this regard, the Board finds significant that the June 2008 VA diabetes examination report indicates that although the Veteran had poor glycemic control, he had been increasing his exercise, and there was no history of ketoacidosis or hospital admission.  Additionally, the January 2010 VA examiner found that with respect to the Veteran's peripheral neuropathy, he was able to walk without restrictions.  

The Board has also considered the Veteran's occupational and educational history.  As documented above, the Veteran's TDIU applications reflect that from 1973 to 2008, the Veteran's full-time employment included working as a fork lift machine operator and as a truck driver/driving instructor.  Additionally, the Veteran either completed high school or obtained his GED.  Although the Veteran's prior work experience does not appear to specifically include "desk," clerical, or administrative work, there is no indication that the Veteran would have been unable to perform such work given his educational background.  

The Board acknowledges that SSA granted disability benefits in October 2008, based on a primary diagnosis of diabetic and other peripheral neuropathy and a secondary diagnosis of sleep-related breathing disorders.  However, the Board is not bound by SSA's determination regarding disability or unemployability because there are significant differences in the definition of "disability" under the Social Security and VA systems.  See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  Further, SSA's determination was based, in part, on non-service connected sleep-related breathing disorders.  Therefore, it has limited probative value because with respect to entitlement to a TDIU, VA may only consider the effect of service-connected disabilities on one's ability to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16.  Moreover, the Board finds significant that even when considering both service-connected and non-service connected conditions, the SSA medical consultant who completed the physical residual functional capacity assessment found that the Veteran's current physical examinations were relatively unremarkable and showed no significant limiting objective findings.  Additionally, the SSA medical consultant opined that the Veteran would be able to stand, walk, and sit through a regular workday given routine breaks, a light lifting limitation, no heights, limited use of stairs (to minimize stress), and limited physical hazards.  Thus, even when considering both service-connected and non-service connected conditions, the SSA physical residual functional capacity assessment weighs against a finding that the Veteran would have been precluded from obtaining or maintaining any substantial gainful employment.  Instead, it supports a finding that when considering the impact of his service-connected disabilities, at a minimum, the Veteran would have been able to perform sedentary work prior to October 16, 2009.  

The Board has also considered the fact that the July 2008 VA Form 21-4192 from Bradway Trucking indicates that the reason the Veteran's employment was terminated was diabetes.  As reflected in the Veteran's May 2008 claim, the Veteran has maintained that his employment was terminated due to Department of Transportation regulations prohibiting the licensure of commercial truck drivers who have diabetes mellitus and are insulin-dependent.  While the Board acknowledges that the Veteran being an insulin-dependent diabetic might have resulted in loss of licensure necessary to perform commercial truck driving, the record does not reflect that functional limitations posed by the Veteran's service-connected diabetes mellitus with erectile dysfunction, mild diabetic peripheral neuropathy of the bilateral lower extremities, and peripheral vascular disease of the bilateral lower extremities would have rendered the Veteran unable to obtain or maintain substantial gainful employment in any capacity, including sedentary.  Instead, as reflected above, the medical evidence of record supports a finding that, the Veteran likely would have been able to perform, at minimum, sedentary work.  

The Board also acknowledges the Veteran's assertion that he was unable to work due to service-connected disabilities prior to October 16, 2009.  However, the Veteran's contention that he was prevented from obtaining and engaging in any substantially gainful employment by reason of his service-connected disabilities is outweighed by other evidence of record, particularly, the objective medical evidence discussed above.  See Caluza, 7 Vet. App. at 511.  As detailed above, the medical evidence of record supports a finding that the Veteran would not have been precluded from performing all types of work prior to October 16, 2009; instead, he likely would have been able to perform, at minimum, sedentary work.  Thus, while the evidence of record, including the Veteran's statements, indicates that the Veteran's service-connected disabilities likely affected his ability to engage in certain employment, it weighs against a finding that service-connected disabilities alone would have prevented him from obtaining or sustaining any kind of employment, including sedentary employment, prior to October 16, 2009.  Thus, as the record of evidence does not suggest that the Veteran was rendered unemployable by reason of service-connected disabilities prior to October 16, 2009, the Board is not required to submit the his claim to the Director of Compensation Service for extraschedular consideration during that period under 38 C.F.R. § 4.16(b).  Cf. Bowling, 15 Vet. App. at 10.  


ORDER

Entitlement to a disability rating greater than 20 percent for diabetes mellitus, type II, with erectile dysfunction and diabetic retinopathy, is denied.  

Beginning October 16, 2009, entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of VA compensation.  




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs