Citation Nr: 1751560 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 07-37 868A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a total disability rating based upon individual unemployablility due to service-connected disability (TDIU) prior to January 15, 2010. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. He died January [REDACTED], 2010. The appellant is his daughter substituting for him in this appeal. The matter of the rating for diabetes mellitus is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetes mellitus, rated 20 percent. In May 2013 the matter of the rating for diabetes mellitus was remanded to the RO for a hearing. In October 2013, a Travel Board hearing was held before the undersigned; a transcript is in the record. In March 2014 the matter of the rating for diabetes mellitus was remanded for additional development. In an April 2015 remand, the issue of TDIU was included as "part and parcel" of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In February 2017, these matters were again remanded for additional development. [In December 2006 the RO denied the Veteran's claim for TDIU for failure to provide information concerning his employment history. In November 2011, the RO denied the appellant substitution with respect to the claim for a TDIU rating on the basis that it was moot as a result of the grant of a 100 percent schedular rating from January 15, 2010. Following the Board's March 2015 remand, an October 2016 supplemental statement of the case readjudicated the matter on the merits and denied TDIU. Accordingly the matter of entitlement to a TDIU rating prior to January 15, 2010 remains on appeal.] FINDINGS OF FACT 1. At no time was the Veteran's diabetes mellitus shown to have required regulation of activities to maintain glycemic control (in addition to insulin and restricted diet). 2. Prior to January 15, 2010, the Veteran's service-connected disabilities (diabetes mellitus, rated 20 percent; diabetic polyneuropathy of both upper extremities, rated 20 percent, each; diabetic polyneuropathy of both lower extremities, rated 10 percent, each; and erectile dysfunction, rated 0 percent) were rated 60 percent combined (from June 19, 2006 but not earlier), but were not shown to be of such nature and severity as to have rendered him incapable of maintaining regular substantially gainful employment consistent with his education and experience. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (Code) 7913 (2017). 2. The schedular requirements for a TDIU rating were not met prior to June 19, 2006, but were met from that date; however, a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by letters in March 2003, August 2003, October 2006, May 2009, November 2010, and September 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. The issue addressed at the October 2013 Travel Board hearing was the matter of the rating for diabetes (TDIU was later added to the appeal as part and parcel of the claim). The undersigned identified the issue and notified the appellant of what is necessary to substantiate this claim. A deficiency in the conduct of the hearing is not alleged. All pertinent private and VA treatment records are associated with the record. The Veteran was afforded VA examinations in April 2003, September 2003, August 2006, April 2007, and June 2009. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diabetes mellitus is rated under Code 7913. A 20 percent rating is assigned when the diabetes requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent rating is assigned when insulin, a restricted diet and regulation of activities are required, along 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 requires 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 rated. "Regulation of activities" has been defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,466 (May 7, 1996) (defining "regulation of activities," as used by VA in Code 7913). Note 1 to Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A TDIU rating 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. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. A February 2003 VA treatment record notes a six month history of diabetes with a treatment plan of insulin, oral agents, and diet and exercise. An April 2003 VA examination report notes that diabetes was diagnosed towards the end of October 2002. The Veteran stated that he had experienced hypertension for many years prior to his diabetes diagnosis. The consulting provider noted that as of that date the Veteran's type 2 diabetes was uncomplicated. A September 2003 VA examination noted that the Veteran was taking Glucophage for diabetes control, following a diet, and was seen once monthly by his provider. It was noted that he had not been hospitalized for diabetes. The diagnosis was type two diabetes with end-organ damage of 100 percent erectile dysfunction. Hypertension was characterized as unrelated to diabetes mellitus. An August 2006 VA examination found mild diabetic polyneuropathy of the upper and lower extremities with no precipitating or alleviating factors. The Veteran was noted to be independent with respect to activities of daily living. On November 2006 treatment consultation the Veteran was instructed on insulin injection. He was instructed on onset, peak and duration of insulin as well as signs and symptoms of hypoglycemia and appropriate treatment. On April 2007 VA examination it was noted that changes in diabetes included that insulin was taken twice daily. The Veteran related that he had not worked since 2000, when he was laid off from a job at Campbell's Soup. He indicated that although he was able to work, he could not find a job because employers would not hire him due to his diabetes and hypertension. It was noted that he had not experienced ketoacidosis, or symptomatic hypoglycemia, or symptomatic hyperglycemia, and did not follow dietary restrictions, but took Gabapentin for symptomatic diabetes. Examination found small fiber sensory neuropathy. A November 2008 medication management record notes that the Veteran reported walking around the Cooper River 3 days a week for exercise; he reported he had had no incidents of hypoglycemia. A December 2008 VA pharmacy clinic record notes the Veteran's insulin dose was increased to 36 units in the morning and 30 units in the evening. The goal of the change was to bring his A1C levels from 8.6% to below 7%. In June 2009 correspondence the Veteran's VA doctor noted that the Veteran's medications were Aspirin daily, HCTZ daily, Lisinopril daily, Amlodipine daily, Simvastatin daily, Metformin in the morning and in the evening, Rosiglitazone daily, NPH insulin in the morning and in the evening, Gabapentin twice daily, Sertraline daily, Trazodone at bedtime, and Omeprazole daily. It was noted that based on blood work the Veteran's diabetes was poorly controlled, and it was recommended that his NPH insulin increase to 40 units in the morning and 26 units in the evening. A June 2009 VA examination report notes there was no history of hospitalization for ketoacidosis or hypoglycemic reactions in the past year. The Veteran reported 4 visits to his diabetic care provider in the past twelve months. It was noted that he was on a restricted diabetic diet, and Glucophage 850 mg (two tablets in the morning and one in the evening), Rosiglitazone 4 mg daily, and NPH insulin subcutaneously 36 units in the morning and 26 units in the evening. The provider noted that the Veteran's occupation would be somewhat restricted for glycemic control (he would have to eat his meals on time to prevent hypoglycemic episodes at work). It was also noted that his physical activities were not limited to maintain glycemic control. The provider concluded that the Veteran would not be able to perform his former occupation as a cook because of mild bilateral diabetic peripheral neuropathy of the upper and lower extremities which could result in injury at the work place working as a cook. A July 2009 medication management report shows that the Veteran's physical activity limited because he was experiencing leg cramping associated with presumed peripheral arterial disease. A September 2009 treatment record notes that the Veteran's insulin regimen was revised from NPH 40 units in the morning and 26 units in the evening to NPH 40 units in the morning and 70/30 (30 units with dinner). He described attempts at weight loss and improving diabetes. He stated that he had been walking regularly in the summer months and chasing his grandson around for exercise, and was trying to stay away from the "bad stuff." The importance of diet and weight loss in controlling diabetes was discussed. He was to continue walking daily and try to improve diet. A November 2009 social work note indicates that the Veteran's insulin had been raised many times since he was first evaluated for service connection, most recently in November 2009, to 45 units 100 unit/ml Novolin N before breakfast and 45 units 70/30 before dinner. He also took Metformin 850 mg twice in morning and once in the evening. A December 2009 VA treatment record notes the Veteran stated that his blood glucose levels had been "good" with morning blood glucose levels in the low 100s and evening readings in the 130s-140s. Blood glucose levels in the morning were 103 but on chem-7 drawn at 8:30 am blood glucose levels were 273. He was advised to increase his NPH dose to 50 on days when he anticipated eating a large breakfast. The Veteran died January [REDACTED], 2010; the causes of his death listed on his death certificate were subarachnoid hemorrhage due to a cerebrovascular accident due to hypertension and diabetes mellitus. July 2010 correspondence from Cooper Hospital describes that the Veteran was admitted in January 2010 with a severe cerebrovascular accident and poorly controlled diabetes with a high likelihood that diabetes was a significant contributing factor to the development of his stroke and death. In December 2010 the appellant submitted an incomplete VA 21-8940 which indicated the Veteran's highest level of education was one year of college. Rating for Diabetes Mellitus Because the criteria for the ratings for diabetes are cumulative (i.e., the criteria for a higher rating include symptoms/impairment additional those for the lower rating) and are stated in the conjunctive (all must be met), to warrant the next higher (40 percent) rating for the Veteran's diabetes, the evidence must show that in addition to insulin and restricted diet, the diabetes required regulation of activities. The record does not show that at any time under consideration the Veteran's diabetes required regulation (avoidance) of activities. A February 2003 VA treatment record notes that the Veteran's diabetic treatment plan included insulin, oral agents, diet, and exercise (i.e., activity was suggested, not regulated). A September 2003 VA examination showed that the Veteran's diabetic treatment plan included Glucophage, and diet. On August 2006 VA examination it was noted that the Veteran's activities were "independent" without any indication of a necessity to restrict activities for glycemic control. A November 2008 treatment record notes Veteran reported taking (apparently lengthy) walks 3 days a week for exercise; he had not had any incidents of hypoglycemia. In a June 2009 examination it was noted that the Veteran's course of diabetic treatment included a restricted diabetic diet, insulin, and oral medication; the provider noted that his physical activities were not limited to maintain glycemic control. In summary, the record does not support that at any time under consideration the Veteran's diabetes required regulation of activities to maintain glycemic control. Accordingly, the criteria for a 40 percent rating are not shown to have been met (or approximated; see 38 C.F.R. § 4.7), and a 40 percent rating was not warranted. Because the criteria for progressively increasing ratings for diabetes are cumulative, it follows that the criteria for still higher ratings are also not met. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. TDIU Prior to June 19, 2006, the Veteran's sole service-connected disability was diabetes, rated 20 percent, and schedular requirements for a TDIU rating were not met. Furthermore, the diabetes is not shown to have required regulation of activities (the record did not suggest he was unemployable due to service connected disability). From June 19, 2006 the combined rating for the Veteran's service connected disabilities (diabetes and its complications) was 60 percent; as they are considered a single disability for purposes of a TDIU rating under 38 C.F.R. § 4.16(a), from that date the schedular requirements for a TDIU rating were met, and the analysis turns to whether at any time prior to January 15, 2010 it was shown that he was unemployable due (solely) to his service-connected disabilities. Initially, the Veteran's claim for TDIU was denied in December 2006 because he did not submit information regarding his employment history. On April 2007 VA examination the Veteran reported that he had not worked since 2000 when he was laid off from a job at Campbell's Soup; he reported that although he was able to work, he could not find a job because employers would not hire him. On June 2009 VA examination the provider opined that the Veteran's occupation would be somewhat restricted to the extent that he would be required to eat his meals on time to prevent hypoglycemic episodes. The provider further opined that the Veteran would not be able to maintain his former occupation as a cook because his mild bilateral diabetic peripheral neuropathy could lead to a workplace injury. The evidence of record does not support a finding that prior to January 15, 2010, the Veteran was rendered unemployable by his service connected disabilities. While the findings (and opinions offered) on VA examinations suggest that the Veteran's employment options would be limited (by dietary requirements and neurological impairment that precluded participation in employment under potentially hazardous conditions where the impairment could lead to injury), the record does not reflect or suggest that the service connected disabilities precluded his participation in the less strenuous and sedentary types of employment. In that regard, the Board finds significant that the Veteran's diabetes is not shown to have required regulations of activities (in fact, the record indicates that he was urged to exercise). And early in the appeal period the Veteran himself acknowledged he was able to work (but that no one would hire him, given his medical history). The appellant has reported that the Veteran completed a year of college, suggesting capability for some sort of clerical work; nothing in the record suggests he would not be capable of performing such work. As the record does not show that due to his service connected disabilities the Veteran (prior to January 15, 2010) was rendered incapable of participating in regular substantially gainful employment, the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. ORDER A rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to a TDIU rating (prior to January 15, 2010) is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs