Citation Nr: 1730697 Decision Date: 08/01/17 Archive Date: 08/11/17 DOCKET NO. 13-26 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial compensable rating for nerve palsy, 6th nerve weakness to include diplopia. 3. Entitlement to an initial rating higher than 20 percent for type II diabetes mellitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971, to include combat service in the Republic of Vietnam from September 1968 to August 1969, for which he received the Purple Heart. This appeal initially came before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, in which the RO, inter alia, granted service connection for type II diabetes mellitus and assigned an initial 20 percent rating effective March 27, 2009 (the date of claim); granted service connection for nerve palsy, 6th nerve weakness to include diplopia and assigned an initial noncompensable (zero percent) rating effective March 27, 2009; and denied service connection for chronic back sciatica. The Veteran timely appealed the initial ratings assigned for type II diabetes mellitus and nerve palsy, 6th nerve weakness to include diplopia, as well as the denial of service connection for chronic back sciatica. In his September 2013 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. However, in a correspondence received in September 2014, the Veteran withdrew his hearing request. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2016). In September 2016, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. At that time, the Board also recharacterized the back issue more broadly, as indicated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). FINDINGS OF FACT 1. A back disability did not manifest in service, arthritis did not manifest within the one year presumptive period, and current back disability is unrelated to service. 2. The Veteran's nerve palsy, sixth nerve weakness to include diplopia more nearly approximates moderate incomplete paralysis of the 5th cranial nerve, and does not more nearly approximate severe incomplete paralysis of the 5th cranial nerve or more than occasional diplopia. 3. The Veteran's type II diabetes mellitus requires insulin and restricted diet, but not regulation of activities. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service; and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). 2. The criteria for an initial 10 percent rating, but no higher, for nerve palsy, sixth nerve weakness to include diplopia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.27, 4.75, 4.76, 4.77, 4.78, 4.79, 4.120, 4.124, 4.124a, Diagnostic Codes (DCs) 6090-8207 (2016). 3. The criteria for an initial rating higher than 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, DC 7913 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The requirements of the statutes and regulation have been met in this case. As to the claims for a higher initial rating for type II diabetes mellitus and nerve palsy, sixth nerve weakness to include diplopia, these claims arise from the Veteran's disagreement with the initial ratings assigned in connection with the grants of service connection for these disabilities. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). As to the claim for service connection for a low back disorder, VA provided pre-adjudication notice to the Veteran in June 2009 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Additionally, VA assisted the Veteran in obtaining identified and available evidence needed to substantiate his claims and affording him VA examinations, the reports of which are of record. As indicated by the discussion below, these examination reports, along with the other lay and medical evidence of record, contain sufficient evidence by which to decide the claims in the context of the pertinent regulations. There is no evidence that additional relevant records have yet to be requested or that additional examinations are in order. Moreover, in its September 2016 remand, the Board instructed the AOJ to give the Veteran an opportunity to identify any relevant healthcare providers, and to provide the Veteran VA examinations for diabetes mellitus, nerve palsy to include diplopia, and the back. In a November 2016 letter, the AOJ gave the Veteran an opportunity to identify any relevant healthcare providers; however, the Veteran did not respond. In addition, in January 2017, the AOJ provided the Veteran VA examinations for diabetes mellitus, nerve palsy to include diplopia, and the back. As such, the AOJ substantially complied with the Board's remand instructions, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with). The Board will therefore proceed to the merits of the claims. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Id. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is one of the listed chronic diseases. In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). The Board notes that the Veteran received the Purple Heart and therefore engaged in combat. VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (listing of Decorations that are evidence of combat participation, including the Purple Heart). The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)). However, 38 U.S.C.A. § 1154(b) does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). In this case, the Veteran was diagnosed with mechanical low back syndrome at a January 2017 VA back examination. Also, it was noted in a May 2013 VA back examination report that the Veteran had a compression fracture and degenerative changes of the lumbar spine. The Veteran has thus met the current disability requirement. Although degenerative changes are not specifically referenced as a chronic disease in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a), the United States Court of Appeals for Veterans Claims (Court) has long recognized that degenerative joint disease and degenerative changes denote the presence of arthritis. See Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) ("Degenerative joint disease, or osteoarthritis is defined as 'arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening'"). The Veteran contends that his current low back disability is related to service, particularly either his 1969 shrapnel fragment wounds or a 1970 fall at Fort Hood. Service treatment records (STRs) show that the Veteran suffered from superficial fragment wounds in the back in March 1969. X-rays taken at the time were negative for any fragments. There is no notation of a fall in 1970, or at any other time during service. Other than the treatment of the Veteran's superficial fragment wounds in March 1969, the STRs are absent of any complaints, treatment or diagnoses related to the back. Additionally, in the Veteran's December 1970 service separation examination report, the spine was clinically evaluated as normal. At the time of examination, the Veteran stated that he was in good health. Also, in a December 1970 statement of medical condition (DA Form 3082-R), the Veteran endorsed that there had been no change in his medical condition since his last separation examination. Although the STRs, including the separation examination report, do not reflect any back injury from a fall, the Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran's testimony credible in this regard as well. The Board therefore finds that the Veteran injured his back from a fall during service as well as sustaining a wound from shell fragments. In light of the above, the Veteran has met the in-service injury requirement. Therefore, the remaining question is whether the Veteran's current low back disability is related to the in-service back injuries mentioned above. There is only one probative medical opinion on this question, that of the January 2017 VA examiner. The Board notes that the Veteran was afforded a VA back examination in March 2013, in which the VA examiner opined that it was less likely as not that the Veteran's current low back condition occurred or was incurred while in service, and that it was less likely as not that the Veteran's current back condition was caused secondarily to his low back fragment wounds in service. However, in its September 2016 remand, the Board found this opinion inadequate, and it will therefore not be discussed further. In January 2017, the Veteran was afforded a VA back examination, in which the VA examiner opined that it was less likely than not that the Veteran's current back condition was incurred in or caused by service. She also opined that the Veteran's current back condition was more likely than not due to his post-service injuries, particularly a post-service 1991 fall from a roof. She reasoned that the Veteran's in-service 1970 fall did not require any medical care throughout his remaining one year of service, and that he was able to complete all PT requirements and fulfilled all military duties from this fall through his separation from service. She also reasoned that there was no medical care sought out for any back condition after service. She also reasoned that the Veteran's superficial fragment wounds from 1969 were without muscle involvement and could not have caused his present symptoms, and that there was no radiographic evidence of retained metallic fragment. She noted that there was no objective evidence of muscle involvement on examination. She also reasoned that compression fracture (per the May 2013 VA examination report) was likely consistent with the Veteran's post-service 1991 fall from the roof, as he was hospitalized for one week. She further explained that there was a 21 year period from the in-service fall until the post-service fall when the Veteran did not seek out any medical care for a back condition. She also explained that after separation from service, the Veteran was able to work without restriction and without medical care for a back condition until the post-service 1991 fall when he was hospitalized for one week. As the January 2017 VA examiner explained the reasons for her conclusions based on an accurate and comprehensive review of the relevant evidence of record, including the Veteran's lay statements, her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Although the VA examiner noted the absence of medical treatment in service and for many years after service, reading the opinion as a whole and in the context of the evidence of record, this was not the sole basis for her opinion. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The examiner also cited the facts that the Veteran was able to complete and fulfill PT requirements and all military duties until separation from service, that the Veteran's in-service superficial fragment wounds were without muscle involvement and without evidence of retained metallic fragment, that the Veteran had a post-service back injury, and that the nature of the current back disorder was such that it was more likely due to the Veteran's post-service back injury. Thus, the examiner's rationale was based on multiple factors indicating that the current back disability was more likely due to the post service back injury. The Board has also considered the statements of the Veteran. Given the Veteran's combat status and the fact that one basis for his claim is that the current back disability is related to shell fragment wounds, back injury from the shell fragment wounds is conceded. The Board also accepts the Veteran's statement that he sustained a back injury when he fell at Fort Hood in 1970. Moreover, the fact that the claimed cause of the Veteran's current back disability, i.e., the shell fragment wounds and fall, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the back disability itself while in service. Reeves, 682 F.3d at 999. The Board therefore also credits the Veteran's statements as to back pain since service. However, as noted above, the January 2017 VA examiner specifically considered the shell fragment wounds and the fall in her probative opinion, and explained why she concluded that the current disability was due to the post service fall rather than in-service fall or shrapnel wounds based on an accurate characterization of the evidence of record. The Board finds this specific, reasoned opinion as to the etiology of the Veteran's back disability to be of greater probative weight than the Veteran's more general lay assertions connecting the current back disability to the in-service injuries via continuity of symptomatology. Moreover, the above evidence reflects that arthritis did not manifest within the one year presumptive period, and that there were no symptoms reflecting early manifestations of arthritis within this time period. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Finally in this regard, as arthritis was neither shown as such nor noted in service, the provisions of 38 C.F.R. § 3.303(b) are not for application. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a low back disability. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Higher Initial Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, awards of service connection for disabilities have been granted and the assignments of the initial evaluations for these disabilities are disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Nerve Palsy, Sixth Nerve Weakness, to Include Diplopia The Veteran's eye disability (i.e., nerve palsy, sixth nerve weakness, to include diplopia) is currently rated noncompensably (zero percent) under 38 C.F.R. § 4.79, DC 6090, applicable to diplopia (double vision). The Board notes that the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board's has therefore discretion in determining the appropriate diagnostic code. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate diagnostic code). To this end, the Board observes that the Veteran's eye disability would also be appropriately rated under DC 8207 (diseases of the cranial nerves - paralysis of the seventh (facial) cranial nerve), as examination reports and treatment records document incomplete paralysis of the cranial nerves. As will be demonstrated below, the evidence shows that the Veteran's eye disability consists primarily of upper facial weakness. These symptoms are consistent with the criteria for DC 8207. This diagnostic code deals with the nerves affected by the Veteran's eye disability. The Board therefore concludes that DC 6090-8207 is most appropriate for the Veteran's eye disability. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The percentage ratings under DC 6090 are based on the degree of diplopia and the equivalent visual acuity. The ratings are applicable to only one eye. A rating cannot be assigned for both diplopia and decreased visual acuity or field of vision in the same eye. When diplopia is present, and there is also ratable impairment of visual acuity or field of vision of both eyes, the ratings for diplopia are to be applied to the poorer eye while the better eye is rated according to the best-corrected visual acuity or visual field. Diplopia is measured using the Goldmann Perimeter Chart (Chart). The Chart identifies the four major quadrants (upward, downward, left and right lateral), plus the central field (20 degrees or less). When the diplopia field extends beyond more than one quadrant or more than one range of degrees, the rating for diplopia is based on the quadrant and degree range that provide the highest rating. When diplopia exists in two individual and separate areas of the same eye, the equivalent visual acuity is taken one step worse, but no worse than 5/200. 38 C.F.R. § 4.78. If the diplopia is from 31 to 40 degrees, it is rated (a) equivalent to 20/40 visual acuity if it is up; (b) equivalent to 20/70 visual acuity if it is lateral; and (c) equivalent to 20/200 visual acuity if it is down. If the diplopia is from 21 to 30 degrees, it is rated (a) equivalent to 20/70 visual acuity if it is up; (b) equivalent to 20/100 visual acuity if it is lateral; and (c) equivalent to 15/200 visual acuity if it is down. If the diplopia was central at 20 degrees, it is rated equivalent to visual acuity of 5/200. 38 C.F.R. § 4.79, DC 6090. In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at zero percent. 38 C.F.R. § 4.79, DC 6090, Note. Central visual acuity is evaluated based on corrected distant vision. 38 C.F.R. § 4.76. Under DC 8207, a 10 percent rating is warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. A 30 percent rating is warranted for complete paralysis. Words such as "severe" and "moderate" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Turning to the relevant evidence of record, in a February 2009 visit to DuPage Medical Group, the Veteran presented with diplopia. On examination, Dr. J.J. noted that other than some right eye weakness, there was not complete paralysis but just a palsy of his right eye with movement. Thereafter, in February 2009, Dr. J.J. referred the Veteran to Dr. G.C. for evaluation. In a letter to Dr. J.J., Dr. G.C. noted that the Veteran reported waking up with double vision a week ago, and that he had no numbness, weakness, eye pain, or headache. She also noted that there were no other neurological symptoms associated with his double vision, and that the double vision was horizontal and worse when looking to the left. Dr. G.C. concluded that neurological examination was consistent with 6th nerve palsy. In May, June and August 2009 visits to DuPage Medical Group, the Veteran indicated some diplopia still present in the distance and in the peripheral. In September 2009, the Veteran underwent a VA eye examination. At that examination, he reported three previous episodes of diplopia, and that they all resolved with the last episode lasting longer and some occasional residual double vision when looking for too long, or staring at one object or looking off to the side. He reported no other problems with his eyes or vision. On examination, the VA examiner found that diplopia was not present. Also, she indicated that visual acuity and visual field was normal. However, she indicated that the Veteran had 6th nerve weakness. In March 2013, the Veteran underwent another VA eye examination. On examination, his visual acuity for corrected distance was 20/40 for each eye. The VA examiner found that the Veteran had no diplopia and no visual field defect. In March 2013, the Veteran also underwent a VA cranial nerves examination, in which his diagnosis of 6th nerve palsy was confirmed. The VA examiner noted that the Veteran had developed double vision three times in the past (in 2009, 2004, and 2003), that resolved completely. She also noted that the Veteran did not describe having any double vision at the examination. On examination, she found that extra ocular movements were normal with no weakness of the 6th nerve on either side. However, she found that there was some upper facial weakness remaining from previous palsy. In this regard, she found that there was moderate incomplete paralysis of the Veteran's 7th cranial nerve (facial). She also found that there was mild muscle strength of the Veteran's 7th cranial nerve (upper portion of face). More specifically, she described that the Veteran had "[s]ome weakness of right facial nerve noted on exam today with reduced wrinkles evidenced on the right forehead and mild weakness of right eye forced closure." Muscle strength testing of the cranial nerves, other than the 7th cranial nerve, were otherwise normal. Sensation testing of the cranial nerves were normal. In his September 2013 substantive appeal, the Veteran stated that he had recurring diplopia which could happen at any time, and that it usually lasted four to six weeks. He also stated that this condition had not resolved completely. In January 2017, the Veteran underwent another VA eye examination. At that examination, no diplopia was reported. On examination, the Veteran's visual acuity for corrected distance was 20/40 for each eye. The VA examiner found that the Veteran had no diplopia and no visual field defect. He remarked that the Veteran had not experienced diplopia for the past several years. Based on the foregoing, the Board finds that the evidence of record more closely approximates moderate incomplete paralysis of the 7th cranial nerve throughout the rating period on appeal. See 38 C.F.R. § 4.7. In this regard, the evidence demonstrates that the symptomatology associated with the Veteran's eye disability is characterized by upper facial weakness. As described above, the March 2013 VA examiner specifically concluded that the Veteran had moderate incomplete paralysis of the 7th cranial nerve (facial) related to his nerve palsy. Accordingly, entitlement to an initial schedular rating of 10 percent for the Veteran's eye disability is warranted for the entire appeal period. Initial ratings higher than 10 percent for the Veteran's eye disability, however, is not warranted because the evidence of record does not reflect that there have been symptoms more nearly approximating severe incomplete paralysis or that there has been more than occasional diplopia. In this regard, the degree of incomplete paralysis of the 7th cranial nerve indicated by the evidence was no more than moderate. In addition, muscle strength testing of the cranial nerves were either mild or normal, and sensation testing of the cranial nerves was also normal. Moreover, although the Veteran indicated that he had recurring diplopia that could happen at any time, such indication was hypothetical in nature, and again, the evidence of record shows that the Veteran has had episodes of diplopia only once during the appeal period in 2009, and two times prior to in 2003 and 2004. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms did not more nearly approximate any of those in the criteria for ratings higher than 10 percent under DCs 6090 and 8207. An initial schedular rating of 10 percent, but not higher, for the Veteran's eye disability is therefore warranted for the entire period of the pendency of the claim. As the preponderance of the evidence is against a finding of a higher initial rating, the benefit of the doubt doctrine is not for application in this regard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board has considered all potentially applicable diagnostic codes for evaluating the Veteran's eye disability as a basis for a higher schedule rating; however, the Board finds no basis upon which to assign a higher rating under any alternate diagnostic code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). B. Type II Diabetes Mellitus The Veteran's diabetes is currently rated 20 percent under 38 C.F.R. § 4.119, DC 7913, applicable to diabetes mellitus. Under DC 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. See Camacho, 21 Vet. App. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran's diabetes requires insulin/oral hypoglycemic agent and a restricted diet. See September 2009 VA diabetes examination report, May 2013 VA diabetes examination report, and January 2017 VA diabetes examination report. The dispositive question is therefore whether it also requires regulation of activities. For the following reasons, the Board finds that it does not. In September 2009, the Veteran underwent a VA diabetes examination, in which the VA examiner specifically indicated that the Veteran's diabetes did not affect activities of daily living or occupation. In March 2013, the Veteran underwent another VA diabetes examination, in which the VA examiner specifically indicated that the Veteran's diabetes did not require regulation of activities as part of its medical management. The VA examiner also indicated that the Veteran's diabetes did not impact his ability to work. In his September 2013 substantive appeal, the Veteran stated that he had regulated activities due to his diabetes. In January 2017, the Veteran underwent another VA diabetes examination, in which the VA examiner specifically indicated that the Veteran's diabetes did not require regulation of activities as part of its medical management. The VA examiner also indicated that the Veteran's diabetes did not impact his ability to work. Private treatment records contain multiple references to diabetes without complications, but do not indicate that the diabetes required regulation of activities. The above reflects that there is no medical evidence of "avoidance of strenuous occupational and recreational activities." The Board notes that the Veteran stated that his diabetes required regulation of activities. However, he did not indicate that any physician had told him to regulate his activities due to his diabetes, and as previously noted, medical evidence is required. See Camacho, 21 Vet. App. at 364. Moreover, as the only medical opinions to specifically address the question indicated that the Veteran did not have to regulate his activities due to his diabetes, the weight of the evidence is against a finding that the Veteran's diabetes requires regulation of activities. As the higher ratings all require regulation of activities, and in any event as there is no argument or evidence of ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider twice a month, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's diabetes. The benefit of the doubt doctrine is thus not for application in this regard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board notes that it has a duty to acknowledge and consider all regulations that are potentially applicable. See Schafrath, supra. However, the Veteran has been diagnosed with, and is in receipt of service connection for, diabetes mellitus, a disorder that is specifically listed in the Rating Schedule. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). C. Additional Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. Id. at 115-16. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id. at 116. The discussion above reflects that the symptoms of the Veteran's eye and diabetes disabilities are fully contemplated by the applicable rating criteria. Here, occasional diplopia is specifically contemplated by the diplopia rating criteria. Additionally, as shown above, the ratings for diseases of the cranial nerves are based on the criteria of moderate or severe incomplete paralysis. This broad language in the criteria thus contemplates all of the symptoms indicated by the lay and medical evidence discussed above, even though they are not specifically listed. Similarly, the regulation of activities in the diabetes criteria contemplates a broad range of symptoms including those experienced by the Veteran. Hence, the criteria contemplate the symptoms and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Accordingly, referral for consideration of an extraschedular rating for the Veteran's eye and diabetes disabilities is not warranted. See 38 C.F.R. § 3.321(b)(1) (2016). Moreover, the Board notes that according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a claimant may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Here, however, the Veteran and his representative have not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. Finally, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran's claims for higher initial ratings. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). Here, the evidence of record, including the Veteran's own statements, does not indicate that the Veteran's diabetes and/or eye disability have precluded or tended to preclude him from securing and following substantially gainful employment. On the contrary, although the Veteran indicated that his eye and diabetes disabilities, among other conditions, have caused him to miss a lot time at work and use up sick/vacation days, he also stated that these disabilities "did not keep me from working." See March 2009 Application for Compensation. The issue of entitlement to a TDIU has therefore not been raised. D. Conclusion The Board appreciates the distinguished service of this combat Veteran and is sympathetic to his claims. However, notwithstanding the pro-claimant nature of the veterans benefits system, see 38 C.F.R. § 3.103(a) (VA must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government), the Board is bound by the laws and regulations that apply to veterans claims, and for the reasons above those laws and regulations do not at this time allow for the grant of any benefit other than that indicated in this decision. 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. §§ 19.5, 20.101(a) (2016). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to an initial 10 percent rating, but no higher, for nerve palsy, 6th nerve weakness to include diplopia is granted, subject to controlling regulations governing payment of monetary awards. Entitlement to an initial rating higher than 20 percent for type II diabetes mellitus is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs