Citation Nr: 1751567 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 07-14 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus with penile dermatitis and diabetic retinopathy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. In December 2014, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). As part of that remand, the Board ordered that the Veteran be provided with a Statement of the Case (SOC) addressing the issues of entitlement to ratings in excess of 20 percent for the Veteran's bilateral neuropathy. Following issuance of the SOC in March 2015, the Veteran did not perfect his appeal, and thus these issues are no longer before the Board. The Veteran has indicated that his diabetes interferes with his ability to work. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal and has modified the issues above accordingly. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of erectile dysfunction as secondary to the Veteran's service-connected dermatitis has been raised by the record in a November 2008 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's diabetes mellitus has required the use of insulin, oral hypoglycemic agents, and a restricted diet; regulation of activities has not been shown. 2. The preponderance of the competent and probative evidence of record demonstrates that the Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent for diabetes mellitus with penile dermatitis and diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 44.119, Diagnostic Code 7913 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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). Merits of the Claim I. ENTITLEMENT TO AN INCREASED DISABILITY RATING FOR DIABETES Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected diabetes with penile dermatitis and diabetic retinopathy is rated 20 percent disabling under Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and 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 (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. A note that follows the criteria states the following: Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. VA treatment records and all of the Veteran's diabetes related VA examinations for the entire period on appeal show the Veteran's diabetic therapy has consisted of a restricted diet and the use of insulin and oral hypoglycemic agents; however, the evidence does not show regulation of activities. The criteria for a rating in excess of 20 percent for diabetes mellitus necessitate a requirement of "regulation of activities." This is so for a 40, 60, and 100 percent rating. With respect to a 40 percent rating, the United States Court of Appeals for Veterans Claims (Court) has held that all the criteria must be met given the clearly conjunctive structure of the language used in Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of Diagnostic Code 7913 for diabetes mellitus with the non-successive Diagnostic Code 7903 for hypothyroidism). Additionally, "regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Medical evidence is required to support the "regulation of activities" criterion. See Camacho, 21 Vet. App. at 364; 38 C.F.R. § 4.119, Diagnostic Code 7913. The evidence does not show that the Veteran's diabetes mellitus requires regulation of activities or avoidance of strenuous occupational and recreational activities to control his blood sugar. All VA examiners expressly found that there is no restriction on the Veteran's activity as a part of his diabetes mellitus management. Without sufficient evidence that the Veteran's diabetes mellitus alone requires regulation of activities as defined in the rating criteria, a 40 percent (or higher) rating is not assignable even though the two other requirements have been met given the conjunctive nature of the rating criteria. See 38 C.F.R. § 4.119, Diagnostic Code 7913; Camacho, 21 Vet. App. at 366. Consequently, a rating in excess of 20 percent for diabetes mellitus is not warranted during any point in this appeal. See Hart, 21 Vet. App. at 505. The Veteran's dermatitis and diabetic retinopathy are rated as noncompensable diabetic complications. See, Diagnostic Code 7913, Note 1. The Board has considered whether separate, compensable ratings are warranted for these disorders. Diagnostic Code 7806 provides ratings for dermatitis. Dermatitis is to be rated under either the criteria under DC 7806. Diagnostic Code 7806 provides that dermatitis that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling. Dermatitis that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. 38 C.F.R. § 4.118, DC 7806. The Veteran's medical records and VA examinations do not show intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. The Veteran has indicated that he has been provided medical treatment for his dermatitis in the past, but the treatment reported by the Veteran and found within VA records shows topical treatment, and not the corticosteroids or other immunosuppressive drugs contemplated within the compensable criteria of DC 7806. With respect to the impacted area, the Veteran's dermatitis has not been shown to encompass more than 5 percent of his entire body, or five percent of the exposed area. The Veteran's service-connected dermatitis is found on his penis; therefore it would not constitute the exposed area contemplated by DC 7806. Accordingly, the Veteran's dermatitis does not involve the requisite portion of his body and does not require the sort of medical treatment that falls within the compensable range of the rating criteria. With respect to the Veteran's diabetic retinopathy, this disability is rated based upon incapacitating episodes or, impairment of visual acuity, whichever results in a higher rating under Diagnostic Code 6006. 38 C.F.R. § 4.75. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R.§ 4.79, Diagnostic Code 6006. A 10 percent rating is assigned with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. Visual acuity is compensated under the following circumstances. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or, (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79. VA examinations show that the Veteran's diabetic retinopathy has not resulted in compensable impairment. For instance, at a VA examination in September 2007, the Veteran's best corrected acuity of the right eye measured 20/30 at both distance and near. The best corrected acuity of the left eye measured 20/30 at both distance and near. The examiner indicated that no visual deficits were associated with the diabetes condition at that time. At a VA examination in July 2015, the Veteran's best corrected acuity of the right and left eyes measured 20/40 at both distance and near. The examiner found no decrease in visual acuity or other visual impairment. VA treatment records do not show impaired visual acuity that warrants a minimum compensable rating. Further, there is no evidence of any incapacitating episodes during the appeal period. Accordingly, the criteria for a separate, compensable rating under Diagnostic Code 6006-6009 have not been met. There are no additional expressly or reasonably raised issues presented on the record. II. ENTITLEMENT TO TDIU The Veteran seeks TDIU and asserts his service-connected diabetes and associated disabilities interfere with employment. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. The Veteran is service-connected for diabetes with penile dermatitis and retinopathy (rated 20 percent from October 14, 2003); peripheral neuropathy with carpal tunnel syndrome, right and left upper extremities associated with type II diabetes mellitus with penile dermatitis and retinopathy (each rated 20 percent from October 14, 2004); peripheral neuropathy, right and left lower extremities associated with type II diabetes mellitus with penile dermatitis and retinopathy (each rated 20 percent from October 14, 2004 and rated 20 percent from June 22, 2015). The schedular criteria for TDIU are met from October 14, 2004. 38 C.F.R. § 4.16(a); 4.25. Although the Veteran meets the schedular requirements, and award of TDIU is not warranted. The Veteran has indicated that his diabetes and related complications such as diabetic neuropathy made it difficult for him to maintain employment. Specifically the Veteran contends that he lost his contract as an insurance sales person because his disabilities interfered with his ability to solicit business and he could not meet the required quota from the insurance company. The insurance company confirms that the Veteran was terminated because he did not meet their performance standards. At a VA diabetes examination in August 2007, the Veteran reported that he worked as a steelworker for 27 to 28 years (1968 to 1996 - 1997) and retired with a retirement compensation package. He worked from 1996 to 1997 in sales and marketing and then for six months in the year 2000 as a truck salesman, full time. The VA examiner indicated that there was no interference with activities of daily living with his diabetic condition. The Veteran was found to be completely independent in his activities of daily living. He reported that he was able to do light housework and light yard work without difficulty. The Veteran also reported that he did push-ups every morning, in addition to some isometric exercises. The examiner indicated that there had been no episodes of hypoglycemia or ketoacidosis, or any hospitalizations for hypoglycemia or ketoacidosis in the past year. The examiner also indicated that the Veteran's activities are not restricted as a result of the diabetes. The examiner commented that the service-connected mild peripheral neuropathy and diabetes alone do not make him unemployable and he is capable of some type gainful employment with restrictions, if he chose to seek this type of employment. At a VA examination May 2011, the Veteran reported that in his prior position as a steelworker for 27 years, he performed sales and marketing duties, and not heavy physical labor with his hands. After that, he was a salesman doing door to door marketing. He relates that he had to cut down working in 2006 because he could not drive any distance. He reported that he would have hand pain and increased tingling with using the steering wheel after a few minutes. Since that time he has stopped working. He also reported that he was fired in August 2006, while working part-time as an insurance agent for United American. He had worked there for 2 1/2 years. The Veteran also indicated activities that bring out tingling and pain included driving, mowing the lawn, and repetitive use of the hands at a keyboard. He stated he could only drive a mile or so before his hands started tingling. Repetitive turning of the pages of a book will also cause tingling, as does gripping things to tightly. He also reported problems with his feet. He could walk several 100 feet, but then his feet begin to hurt, with warm and burning sensation. He indicated that he could not walk around the mall. The examiner determined that the Veteran does have limitations in maintaining his grip for prolonged periods of time, and for standing and walking for prolonged periods of time. However, if his work did not involve prolonged standing, walking or manipulation of objects with his hands, he could still be employed. At another VA examination in 2011, the Veteran's reported difficulty in manipulation of small objects and occasions of dropping items with both hands was noted. The examiner believed that the Veteran would not be able to do physical work due to peripheral neuropathy, but would be able to do some type of sedentary work. At a VA diabetes examination in June 2015, an examiner indicated that the service-connected diabetes with penile dermatitis does not make the Veteran unemployable, and that he was capable of some type of gainful employment with restrictions if he so chose. The Board acknowledges that the evidence of record shows that the Veteran's service-connected disabilities, and in particular his peripheral neuropathy of the bilateral upper and lower extremities, do impact his ability to work to some degree. For example, as previously mentioned, the June 2015 VA examiner opined that "employment which requires prolonged standing or walking would not be recommended" and that "employment which would involve repetitive use of hands would not be recommended." However the examiner also indicated that "employment with restrictions is still possible." A VA examiner in May 2011 opined that if the Veteran's "work did not involve prolonged standing, walking or manipulation of objects with his hands, he could still be employed." While the medical evidence and the lay evidence offered by the Veteran reflect that some of service-connected disabilities impact his ability to work, the Board cannot conclude that the Veteran cannot perform the physical and mental acts required by gainful employment. The Veteran completed high school and has two years of training in life, property and casualty insurance. The Veteran also has over 30 years prior work experience in marketing and sales. His training and many years of experience in this field must be considered along with the evidence showing sedentary employment with restrictions is still possible. Indeed, the Veteran has indicated that this prior work history did not involve heavy physical labor. The Board believes that Veteran's service-connected disabilities would not preclude gainful employment positions consistent with his training and lengthy work experience such as sales, marketing, insurance claims/sales/marketing work and related employment in an office or similar sedentary environment. The Board acknowledges that the Veteran exhibits some occupational impairment due to his service-connected disabilities, as evidenced by his 60 to 70 percent rating during the period on appeal, but upon review of the evidence, such impairment does not rise to the level as precluding his ability to obtain and maintain gainful employment consistent with his education, training, and work experience. While the Board is sympathetic to the Veteran's claim, and is also grateful for his honorable service, the persuasive and competent medical evidence does not show he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. As the preponderance of the evidence is against the claim for a TDIU; the claim is denied. See generally Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). ORDER A disability rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to a TDIU is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs