Citation Nr: 1742902 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 11-33 259 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due type II diabetes mellitus, to include pursuant to the provisions of 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to September 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2011 rating decision in which the RO denied an increase in the disability rating for service-connected diabetes mellitus. In August 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2011. In April 2012, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2015, the Board expanded the appeal to include the matter of entitlement to a total disability rating based on individual unemployability (TDIU) due to diabetes mellitus (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)). At that time, the Board denied a disability rating in excess of 20 percent for diabetes mellitus and remanded the claim for TDIU to the agency of original jurisdiction (AOJ) for additional development. After accomplishing further action, the AOJ denied the claim (as reflected in an September 2016 SSOC) and returned this matter to the Board for further appellate consideration. Although the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. All such records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the each matter herein decided have been accomplished. 2. Pertinent to the April 2011 claim for increased rating for type II diabetes mellitus, the rating for that disability does not meet the percentage requirements for a schedular TDIU, and competent, probative evidence indicates that the Veteran's service-connected type II diabetes mellitus, alone, does not preclude substantially gainful employment consistent with the Veteran's education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU, due to service-connected type II diabetes mellitus, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.,16(b), are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). After a complete or substantially complete application for benefits is received, notice provisions under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. See Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For increased-compensation claims, which include TDIU claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). Prior to the rating decision on appeal, a May 2011 letter notified the Veteran of the evidence not of record that was needed to substantiate his claim for increase. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with requisite notice of how VA assigns rating and effective dates, as well as the type of information that impacts those determinations. In July 2016, the Veteran was provided with a letter specifically informing him of how to substantiate his TDIU claim. As the Veteran's TDIU claim is considered part of the Veteran's increased rating claim for diabetes mellitus, it was not provided prior to the initial rating decision in June 2011. Nonetheless, the claim for TDIU was adjudicated in the September 2016 SSOC. In light of the foregoing, the Board finds that the Veteran is not prejudiced by any error in timing of the notice with respect to the claim for TDIU. The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of the Veteran's VA treatment records, as well as the reports of the May 2011 and June 2014 VA diabetes examinations. Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative on his behalf and the Veteran's testimony before the undersigned VLJ. The Board finds that no further action on this matter, prior to appellate consideration, is required. As for the April 2012 Board hearing, the Veteran was provided the opportunity to orally set forth his contentions. During the hearing, the undersigned VLJ identified the issue (then, characterized only as a claim for higher rating), and the Veteran provided testimony regarding the functional effects of his type II diabetes mellitus. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the presiding VLJ pertaining to the Veteran's current problems and treatment. Although the undersigned did not explicitly suggest the submission of any specific, additional evidence pertinent to the Veteran's increased rating claim for diabetes, on these facts, such omission was harmless. Following the hearing, the Board directed the development of the TDIU matter in the January 2015 remand, and, as a result. additional evidence was subsequently added to the record. Thus, the hearing was legally sufficient. See 38 C.F.R. § 3.103(c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Furthermore, as regards the January 2015 remand, the Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). Pursuant to the remand directives in January 2015, the AOJ sent a letter to the Veteran in July 2016 informing him how to substantiate a claim for TDIU and requesting that the Veteran provide information, and if necessary, authorization, to obtain any additional evidence pertinent to his TDIU claim that is not currently of record. The letter included a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The claims file contains a completed VA Form 21-8940. The claims file also contains VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability, completed by the Veteran's former employer. The Veteran's VA treatment records from November 2006 to September 2016 were associated with the claims file. Furthermore, as directed, after receipt of the additional evidence, the AOJ adjudicated the claim, as reflected in the September 2016 SSOC. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this matter. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran filed a claim for an increased disability rating for service-connected diabetes mellitus in April 2011. In January 2015, the Board determined that the matter of the issue of entitlement to a TDIU due to diabetes mellitus was raised as a component of the increased rating claim. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16 (a) are not met, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies). See 38 C.F.R. § 4.16 (b). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment resulting from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In determining entitlement to a TDIU, the crucial inquiry is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, VA must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. Id. The fact that a veteran is unemployed is not enough. It must be shown d that his service-connected disorder(s), without regard to his advancing age or other impairment, make him incapable of performing the acts required by employment. Id. Given the 20 percent rating assigned for the Veteran's diabetes mellitus during the period at issue in this appeal, the percentage requirements for a schedular TDIU due to that disability, pursuant to the provisions of 38 C.F.R. § 4.16(a), are not met. Nonetheless, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16 (b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance, and must, instead, refer the claim to the first line authority prescribed in section 4.16(b) for consideration of the Veteran's entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Veteran asserts that his type II diabetes mellitus first affected full-time employment in January 2011. See August 2016 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. In his application, it was noted that he had completed high school and one year of college. The application reflects the Veteran's statement that he was unable to obtain a Class D Driver's License because of his diabetes and he needed that license for his job. The report of a May 2011 VA examination reflects that the Veteran was working full-time for the last 11 years as a delivery truck driver. As of January, he was reduced from driving big-rig truck to a pickup truck due to his insulin dosing. He sold and delivered MAC truck parts full-time with rotating shift. The Veteran's diabetes was treated with controlled diet and oral agents. In June 2010, his primary care physician added insulin dosing. The examiner noted that his diabetes continued to be uncontrolled. The Veteran reported hyperglycemia one time a month, feeling flushed and thirsty. Drinking water resolved the symptomatology. He experienced hypoglycemia one to two times per month, feeling shaky and sweaty. Eating would resolve the symptomology. He denied ketoacidosis. The Veteran also denied hospitalizations for ketoacidosis, hyperglycemia, or hypoglycemia. He reported experiencing general loss of strength and fatigability. A June 2014 VA examiner opined that the Veteran's diabetes mellitus did not impact the Veteran's ability to work. The examiner noted that the Veteran reported that he retired at the age of 62. He was a truck driver with class D license and his company would not give him a medical card to let him driver larger trucks due to his diabetes requiring insulin. The company gave him a smaller truck with a smaller load and he declined to continue working due to insulin injection. The Veteran reported he receives Social Security. The Veteran clarified in May 2014 that he has never filed for a disability claim with Social Security. His current activities involved mowing the grass, cutting wood, and riding a trike motorcycle. He also reported that he had a wood shop. The Veteran reported that he was exercising with an elliptical twice a day until he injured his knee. The examiner documented that the Veteran experienced episodes of ketoacidosis and hypoglycemia less than two times per month. The Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemia. The examiner determined that the Veteran had not experienced progressive unintentional weight loss and/or loss of strength attributable to diabetes. In September 2016, the Veteran's most recent employer submitted a completed VA Form 21-4192, indicating that the Veteran worked in parts counter sales, 8 hours a day and 40 hours a week. The reason for termination of employment was that the Veteran retired due to age. The employer noted that they did not make any concessions to the Veteran due to age or disability. The Veteran did not lose any time during the last 12 months preceding the last date of employment due to disability. The employer documented that the Veteran earned approximately $33,000 during the 12 months preceding his last date of employment, which was June 1, 2012. Here, competent, probative evidence indicates that the Veteran's diabetes has not prevented him from obtaining and maintaining substantially gainful employment. It appears that the main issue is that due to the Veteran's diabetes requiring treatment of insulin, the Veteran is unable to receive a medical card as part of the his Class D Driver License and therefore, he is no longer able to drive large trucks as was required in his last job. See April 2012 Hearing Transcript at 3-4. There is nothing in the record that indicates that the Veteran would be unable to engage in other physical or sedentary work. In fact, during the June 2014 VA examination, the Veteran reported in the that his diabetes did not prevent him from mowing the lawn, cutting wood, or working in his wood shop. A September 2010 VA treatment record documents that the Veteran reported cutting wood for exercise and he was encouraged to engage in 30 minutes of additional exercise. A February 2014 VA treatment record shows that the Veteran started using an elliptical machine five times a week. Furthermore, the Veteran has an educational level of one year of college. Based on the Veteran's education and work experience in delivering MAC truck parts and working in parts counter sales, it appears that the Veteran would be able to use his knowledge and experience to segue into working in an automotive and/or retail parts store with a job that does not require a Class D Driver's License. In light of the foregoing, the competent, probative evidence shows that the Veteran is capable of performing the physical and mental acts required for gainful employment. The Board acknowledges that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). However, as medical examiners are responsible for providing a full description of the functional effects of a disability upon the person's ordinary activity, to include employment (see 38 C.F.R. § 4.10 and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)), the Board has considered the findings and conclusions of the May 2011 and June 2014 VA examiners-based on examination of the Veteran, and, full consideration of the record-as probative evidence in assessing the functional effects of the Veteran's diabetes. Such evidence has been considered, along with other pertinent evidence of record-to include information received from the Veteran's former employer and the Veteran's own assertions-in determining that the Veteran's diabetes mellitus has not been shown to render him unemployable. Furthermore, to whatever extent the Veteran may now attempt to assert that he is or has been rendered unemployable due to his service-connected heart disability at a point pertinent to this appeal, the Board emphasizes that the Veteran is not shown to possess any expertise in medical or vocational matters so as to competently opine on such a matter (see, e.g., 38 C.F.R. § 3.159 (2014) and Bostain v. West, 11 Vet. App. 124, 127 (1998)), and, as indicated above, the competent medical and other objective evidence on this point simply does not support such a conclusion. Under these circumstances, the Board concludes that the Veteran's service-connected type II diabetes mellitus has not prevented him from obtaining and maintaining substantially gainful employment at any time pertinent to the April 2011 claim for increase. Therefore, submission of the claim in to the Director of VA's Compensation Service for extra-schedular consideration is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (2016).. ORDER The claim for a TDIU to due type II diabetes mellitus, to include pursuant to the provisions of 38 C.F.R. § 4.16(b), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs