Citation Nr: 1749804 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 08-06 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for type II diabetes mellitus, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to March 12, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. This appeal initially came before the Board of Veterans' Appeals (Board) from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied the Veteran's claims for an increased rating for his service-connected type II diabetes mellitus, rated 20 percent disabling, and for service connection for diabetic nephropathy. In January 2012, the Board remanded the claims for an increased rating for diabetes mellitus and for service connection for diabetic nephropathy to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. In addition, the Board found that the issue of entitlement to a TDIU was raised as part of the increased rating claim for diabetes mellitus, see Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and also remanded that issue to the AMC, for further development. In March 2016, the RO granted a TDIU, effective January 12, 2010. However, the issue of entitlement to a TDIU, prior to that date, remained on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In February 2017, the Board denied service connection for diabetic nephropathy. In that decision, the Board also remanded the remaining claims for an increased rating for diabetes mellitus and for a TDIU, prior to January 12, 2010, to the agency of original jurisdiction (AOJ), for further development. In April 2017, the AOJ granted an earlier effective date for the grant of TDIU, with a new effective date of March 12, 2008. However, the issue of entitlement to a TDIU, prior to that date, now remains on appeal, as indicated on the title page. The Board notes that in a March 2017 VA diabetes mellitus examination report, after the March 24, 2015 effective date of amendments to regulations describing the manner in which claims and notice of disagreements must be filed, the VA examiner found that the Veteran's diabetes mellitus was at least as likely as not aggravated his hypertension. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014). As the Veteran was previously denied service connection for hypertension in a November 2007 rating decision, the Board finds that the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension has been raised, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 19.9(b) (2017). See also 38 C.F.R. § 3.150(a) (2016) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 3.155 (2016) (describing the manner and methods in which a claim can be initiated and filed); 38 C.F.R. § 3.160 (2016) (requiring that claims be filed on standard forms). The issue of entitlement to a TDIU, prior to March 12, 2008, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's type II diabetes mellitus requires hypoglycemic agent, insulin and restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not 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, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. As to the increased rating claim decided herein, the requirements of the statutes and regulation have been met in this case. First, VA notified the Veteran in October 2006 and June 2008 letters of the information and evidence needed to substantiate and complete his increased rating 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. This claim was most recently readjudicated in an April 2017 supplemental statement of the case (SSOC). Additionally, VA assisted the Veteran in obtaining identified and available evidence needed to substantiate his increased rating claim 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 evaluate the Veteran's service-connected diabetes mellitus 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. The Board will therefore proceed to the merits of the increased rating claim on appeal. II. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's diabetes mellitus is currently rated 20 percent disabling under 38 C.F.R. § 4.119, DC 7913, applicable to diabetes mellitus. Under DC 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and a restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus 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 mellitus 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 relevant evidence of record reflects that the Veteran's diabetes mellitus requires oral hypoglycemic agent, insulin, and a restricted diet. The dispositive question is therefore whether it also requires regulation of activities. Based on the relevant evidence of record and the following reasons, the Board finds that it does not. In November 2006, the Veteran underwent a VA diabetes mellitus examination, in which he reported the following: that he was on a low carb/low sugar diet; that he did not really notice any restrictions of his activities related to diabetes; that he was seeing his diabetic care provider approximately every three to four months; and that he experienced loss of strength but no anal pruritus. He also denied any recent hypoglycemic reactions, hospitalizations for diabetes or ketoacidotic events, as well as any weight changes. The VA examiner listed the Veteran's current medications, to include a hypoglycemic agent and insulin. In a February 2008 note, the Veteran's private doctor, Dr. S., wrote that the Veteran "being a diabetic is on a strict diet + limited exercise plan." In October 2008, the Veteran underwent another VA diabetes mellitus examination, in which he reported the following: that he had no ketoacidosis or hypoglycemia requiring hospitalization; that he followed a restricted diet; that his weight had been stable; that he saw his diabetic care provider approximately three times per year; that he had not been advised to restrict his activities in an effort to prevent hypoglycemic reactions. The VA examiner concluded that the Veteran's diabetes mellitus required dietary restriction, oral medication, and insulin for control. The VA examiner also concluded that the Veteran had complications of his diabetes mellitus, such as coronary artery disease (CAD) with subsequent angioplasty and erectile dysfunction, but that he otherwise did not have any other complications of his diabetes mellitus, such as retinopathy, cerebrovascular disease, nephropathy, neuropathy, peripheral vascular disease, or skin problems. In an August 2012 statement, the Veteran stated that he had been on insulin since 2007. He also stated that he had restricted activities and exercise as well as restricted diet due to his diabetes mellitus. In January 2013, the Veteran underwent another VA diabetes mellitus examination, in which the VA examiner checked boxes on the examination report indicating that the Veteran's diabetes mellitus required prescribed oral hypoglycemic agent(s), prescribed insulin (more than one injection per day), and regulation of activities. The VA examiner provided the following example of how the Veteran must regulate his or her activities: "Does not exercise as much as recommended." The VA examiner also checked boxes on the examination report indicating that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions weekly, that the Veteran had zero episodes of ketoacidosis requiring hospitalization over the past 12 months, and that the Veteran had zero episodes of hypoglycemia requiring hospitalization over the past 12 months. The VA examiner also checked a box on the examination report indicating that the Veteran had progressive unintentional weight loss attributable to diabetes mellitus. The VA examiner also checked a box on the examination report indicating that the Veteran had diabetic peripheral neuropathy of the upper and lower extremities, as a complication of diabetes mellitus. In June 2015, the Veteran underwent another VA diabetes mellitus examination, in which the VA examiner checked boxes on the examination report indicating that the Veteran's diabetes mellitus required restricted diet, prescribed oral hypoglycemic agent(s), and insulin. The VA examiner also indicated the following: that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus; that the Veteran visited his diabetic care provider for episodes of ketoacidosis less than two times per month; that the Veteran visited his diabetic care provider for episodes of hypoglycemia less than two times per month; that the Veteran had zero episodes of ketoacidosis requiring hospitalization over the past 12 months; that the Veteran had zero episodes of hypoglycemic reactions requiring hospitalization over the past 12 months; and that the Veteran had no progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. In March 2017, the Veteran underwent another VA diabetes mellitus examination, in which the VA examiner checked boxes on the examination report indicating that the Veteran's diabetes mellitus required a restricted diet, prescribed oral hypoglycemic agent(s), and insulin (more than one injection per day). The VA examiner also indicated the following: that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus; that the Veteran visited his diabetic care provider for episodes of ketoacidosis less than two times per month; that the Veteran visited his diabetic care provider for episodes of hypoglycemia less than two times per month; that the Veteran had zero episodes of ketoacidosis requiring hospitalization over the past 12 months; that the Veteran had zero episodes of hypoglycemic reactions requiring hospitalization over the past 12 months; and that the Veteran had no progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The VA examiner also indicated that the Veteran's erectile dysfunction and cardiac condition was at least as likely as not due to diabetes mellitus. In addition, at the end of the examination report, the VA examiner expanded on his finding that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. In this regard, the VA examiner concluded that the Veteran did not have specific limitation on his activity level nor in the activities in which he was allowed to engage in specifically, solely or exclusively due to or because of his diabetes mellitus. The VA examiner also concluded that the Veteran had no exercise restrictions or recommendations to avoid strenuous occupational or recreational activities specifically, solely or exclusively due to or because of diabetes mellitus. The VA examiner explained that regarding the Veteran's heart disease, the Veteran certainly did have restriction on his activity and in fact would be told specifically to avoid strenuous occupational and recreational activities in order to avoid angina or worsening heart ischemia, but that if the Veteran had diabetes mellitus alone, and not heart disease, such restrictions would not be necessary. The VA examiner also explained that the February 2008 note from Dr. S. merely stated that part of the treatment for diabetes mellitus was a "strict diet" and an "exercise plan," but that due to the Veteran's underlying heart condition and even his back problems, the Veteran's exercise plan was somewhat "limited." The VA examiner reiterated that it was his opinion "that the intent and proper interpretation of the statement is NOT that his 'diabetes limits his activities' but rather that the use of 'exercise' within the veteran's 'treatment plan' was somewhat 'limited' due to his OTHER co-morbid conditions." The above reflects that the weight of the evidence is against the Veteran's diabetes requiring regulation of activities, i.e., "avoidance of strenuous occupational and recreational activities." The Board notes that the Veteran has, at times, stated that his diabetes mellitus required regulation of activities. However, at those times, he did not indicate that any physician had told him to regulate his activities due to his diabetes mellitus, and as previously noted, medical evidence is required to satisfy the regulation of activities criterion. See Camacho, 21 Vet. App. at 364. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witnesses are competent to report contemporaneous medical diagnoses). In addition, although the January 2013 VA examiner indicated that the Veteran required regulation of activities as part of medical management of diabetes mellitus, she also explained in this regard, somewhat inconsistently with the definition of "regulation of activities," that the Veteran "[d]id not exercise as much as recommended." Moreover, although Dr. S. stated in February 2008 that the Veteran was on a limited exercise plan, no further explanation, detail, or context was provided. Significantly, the March 2017 VA examiner, after a review of the entire claims file and consideration of all of the above evidence, concluded that the Veteran's diabetes mellitus has not required regulation of activities. In this regard, the Board finds that the March 2017 VA examiner's specific, reasoned opinion on the question of whether the Veteran's diabetes mellitus required regulation of activities to be of greater probative weight than that of the checked boxes and unexplained indications of the January 2013 VA examiner and Dr. S., respectively, as well as the Veteran's general lay assertions on this question. Therefore, the weight of the evidence is against a finding that the Veteran's diabetes mellitus requires regulation of activities. As the higher ratings all require regulation of activities, the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's diabetes mellitus. The benefit of the doubt doctrine is thus not for application in this regard, and the claim for an increased rating must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board notes that Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating. See 38 C.F.R. § 4.119, DC 7913. However, the Veteran is already in receipt of separate ratings for CAD, peripheral neuropathy of the upper and lower extremities, nuclear sclerosing cataracts, erectile dysfunction, and gastroparesis associated with his diabetes mellitus, and those matters are not presently before the Board. In addition, as mentioned in the Introduction, the Board has referred the issue relating to hypertension, and as such, this matter is also not presently before the Board. Thus, the question is whether the Veteran has other compensable complications of diabetes mellitus. However, the relevant evidence of record does not indicate any other complications of diabetes mellitus. The Board further notes that it has a duty to acknowledge and consider all regulations that are potentially applicable. See Schafrath, 1 Vet. App. at 593. 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) ("when a condition is specifically listed in the Schedule, it may not be rated by analogy"). III. 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 diabetes mellitus are fully contemplated by the applicable rating criteria. Here, the regulation of activities in the diabetes mellitus criteria as well as the Note taking into account complications of diabetes mellitus, contemplate 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 diabetes mellitus is not warranted. See 38 C.F.R. § 3.321(b)(1). 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." In this case, entitlement to a TDIU has been granted from March 12, 2008. The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. As the Veteran has been granted TDIU, he is deemed to have total unemployability and there is no "gap" to fill by § 3.321(b). Further discussion of an extraschedular rating based on the collective impact of multiple disabilities is therefore not warranted in this case. Prior to that date, 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. ORDER Entitlement to an increased rating for type II diabetes mellitus, currently rated 20 percent disabling, is denied. REMAND In an April 2017 rating decision, the AOJ granted an earlier effective date for the grant of TDIU, with a new effective date of March 12, 2008, because that was the date that the Veteran became eligible for this benefit on a schedular basis. See 38 C.F.R. § 4.16(a) (2016). However, it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). In addition, the issue of entitlement to a TDIU is implicitly raised whenever a veteran seeks the highest rating for a disability, and there is evidence that such disability renders the veteran unemployable. See Rice, supra. Here, there was evidence that the Veteran's service-connected disabilities rendered him unemployable. For example, in an application for increased compensation based on unemployability (VA Form 21-8940) and a July 2017 brief, the Veteran and his representative indicated that the Veteran had been unemployed since 1994 due to his service-connected disabilities. Additionally, SSA disability determination and transmittals indicate that the Veteran had been disabled secondarily from diabetes mellitus as well as from heart disease (prior to March 12, 2008, the Veteran was also in receipt of service connection for CAD, rated 30 percent disabling) from January 1994. The issue of entitlement to a TDIU, prior to March 12, 2008, has thus been raised as part of the claim for an increased rating for diabetes mellitus. While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, it must consider whether remand for referral to VA's Director of Compensation Service is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, given the above evidence, the Board finds that remand for such referral is warranted. Accordingly, the matter of entitlement to a TDIU, prior to March 12, 2008, is REMANDED for the following action: 1. Refer to the Director of Compensation Service the issue of entitlement to a TDIU, prior to March 12, 2008, pursuant to 38 C.F.R. § 4.16(b). 2. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs