Citation Nr: 1800084 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-16 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, Type II, prior to August 27, 2015, and in excess of 40 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Army from August 1968 to April 1970. This case comes before the Board of Veteran's Appeals (Board) on appeal from April 2012 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a rating in excess of 20 percent for diabetes mellitus and TDIU, respectively. Before the appeal was certified to the Board, in an August 2015 rating decision, the RO increased the rating for the appellant's service-connected diabetes mellitus to 40 percent, effective August 27, 2015. In July 2017, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record on appeal. In reviewing the record on appeal, the Board notes that VA clinical records and records from the Social Security Administration (SSA) note diagnoses of coronary artery disease. VA has determined that the appellant served on active duty in Korea with a unit that was determined by the Department of Defense to have operated in or near the Korean DMZ in an area where herbicide agents are known to have been applied. See e.g. June 2011 rating decision. The law provides that if a veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases which are deemed to be associated with herbicide agent exposure include coronary artery disease. VA has amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The Veteran is therefore advised that if he wishes to seek service connection for coronary artery disease, he should submit a claim on the prescribed form, seeking the assistance of the RO or his representative if necessary. FINDINGS OF FACT 1. For the entire period on appeal, the appellant's diabetes mellitus required insulin, a restricted diet, and regulation of activities, but no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice a month or more visits to a diabetic care provider. 2. The appellant's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for a 40 percent rating, but no higher, for diabetes mellitus have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistant Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or 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 a duty to assist argument). Applicable Law VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases or injuries encountered as a result of or incident to military service. Generally, the degrees of disability specified are considered adequate to compensate for loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Diabetes Mellitus Diabetes mellitus is rated pursuant to the criteria set forth at 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). Under those criteria, a 20 percent rating is assigned when diabetes mellitus requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned when diabetes mellitus requires insulin, a restricted diet, and a regulation of activities. A 60 percent rating is assigned when diabetes mellitus requires more than one daily injection of insulin, a restricted diet, and a regulation of activities (avoidance of strenuous occupational and recreational 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 assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and a 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. Note (1) following Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. TDIU Where the schedular rating is less than total, a total disability rating may still be assigned when the disabled person is, in the judgement of the rating agency, unable to follow a substantially gainful occupation as a result of the service-connected disability; provided that, in part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and a combined disability rating of 70 percent or more. 38 C.F.R §§ 3.340, 3.341(a), 4.16 (a) (2017). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2017). The ultimate question is whether the Veteran, in light of his service connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Benefit of the Doubt Rule The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. §§ 3.102; 4.3. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant contends that his that his diabetes mellitus should be rated at 40 percent from the date he filed his increased rating claim and that his service-connected disabilities have caused him to be totally incapable of securing and following gainful employment. Diabetes Mellitus Applying the criteria set forth above to the facts of this case, the Board finds that a 40 percent rating, but no higher, is warranted for the entire period of the claim. The appellant's claim for an increased rating was received by VA in January 2012. At that time, he claimed that treatment of his diabetes mellitus required him to be on insulin, a restricted diet, and a regulation of activities. VA treatment records acquired in response to that claim corroborate the appellant's claim as does the appellant's August 2015 VA examination. In January 2012, along with his claim, the appellant submitted VA treatment records that listed the medications he was prescribed to treat his various disabilities. Included on that list was Glargine, which is injectable insulin, used to treat diabetes mellitus. In August 2015, the appellant underwent a VA examination where he was found to be prescribed insulin, and on a restricted diet with regulated activities. In describing how the appellant's activities were regulated, the examiner stated that being on insulin requires a regulation of activities due to the risk of hypoglycemia. This opinion was offered after an in-person examination of the appellant by a medical professional, qualified to render an opinion on the appellant's condition. The Board finds this opinion highly probative in determining this issue. Further, the appellant also stated at his July 2017 hearing that when his treating physician prescribed him his insulin, he was told he needed to avoid doing any strenuous activity because it could cause his sugar to drop and potentially lead to him falling. The Board finds the appellant competent to relay the instructions his treating physician gave to him and finds his testimony credible as it is consistent with the rest of the record. While the appellant does have complications that would not be compensable if separately evaluated, he has not claimed, and the record does not indicate, that he has suffered any periods of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider at any time during the appellate period. Therefore, a disability rating of 60 percent is not warranted. Indeed, at his July 2017 hearing, the appellant testified that he was satisfied with the 40 percent rating, but believed that it should have been awarded from 2012, as he had been on insulin requiring the restriction of activities since that time. The Board finds that, granting the appellant the benefit of the doubt, the evidence demonstrates that he was on insulin, a restricted diet, and was required to regulate his activities since he filed his claim. Therefore, the Board finds the appellant's diabetes mellitus warrants a rating of 40 percent, and no greater, for the entire period of the claim. TDIU Applying the criteria set forth above to the facts of this case, and affording the appellant the benefit of the doubt, the Board finds that the appellant's service connected disabilities render him unable to secure and follow a substantially gainful occupation. The appellant is service-connected for diabetes mellitus, now rated at 40 percent disabling. In addition, service connection is in effect for peripheral neuropathy of the femoral nerve in both lower extremities, each rated as 20 percent disabling from October 15, 2014; peripheral neuropathy of the sciatic nerve in both lower extremities, each rated as 10 percent disabling from March 10, 2012, and 20 percent from October 15, 2014; and gastroesophageal reflux disease associated with diabetes mellitus, rated as 10 percent disabling from March 10, 2012. The appellant also has non compensable manifestations of his diabetes mellitus that includes cataracts, onychomycosis, and erectile dysfunction. He currently receives a special monthly compensation for loss of use of a creative organ. The appellant's combined disability rating is 60 percent from March 10, 2012, and 80 percent from October 14, 2014. The Board finds that the appellant meets the rating criteria for schedular TDIU. 38 C.F.R. § 4.16(a). As all of the appellant's service connected disabilities are part of one larger etiology, type 2 diabetes mellitus, the Board finds that the appellant has one disability rated as 60 percent or more. Thus the first element of establishing TDIU is met. The appellant has an eighth grade education and a GED. He served as a police officer from 1983 to 2006 and then worked for as a laborer from 2006 to January 2008. The appellant retired in 2008 because of a non-service connected back disability. While the appellant's initial period of unemployability was caused by a non-service connected condition, the Board finds that the record is sufficient to conclude that his service connected diabetes mellitus, along with its associated conditions, prevent him from maintaining substantially gainful employment. The appellant underwent VA examinations for his service connected diabetes and secondarily service connected neuropathy in both lower limbs in March 2012, April 2012, January 2015, August 2015, and July 2016. Consistent across these examinations was a finding that the appellant was severely limited in his ability to perform tasks requiring any physical exertion. His diabetes itself leaves him easily fatigued and his neuropathy prevents him from walking or standing for any significant amount of time. Additionally, the appellant at his July 2017 hearing described how his diabetes affects his daily life. He states that he frequently gets a burning feeling in his lower extremities. He explained that he gets dizzy a lot and will often have to grab onto something to keep from falling down. The appellant also testified at his July 2017 hearing that his diabetes causes him a lot of fatigue throughout the day. He often feels totally worn out and has to lie down because of it. He also stated that he has issues with frequent urination. The appellant also articulated how the frequent ups and downs in his blood sugar caused blurry vision. When his sugar is high, he stated that he sees waves in his field of vision, and when his sugar is low he explained it as seeing through a fog. He also stated that he gets a burning feeling in his eyes, which leaves them puffed up and watery. He testified that these vision problems make it difficult for him to read or type. The Board finds the appellant is competent to describe symptoms he is experiencing along with their severity and to describe facts known to him through his daily life. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board further finds the appellant's testimony about the symptoms he is experiencing credible and consistent with the record. Considering all of the evidence and granting the appellant the benefit of the doubt, the Board finds that the appellant's service connected diabetes mellitus and its associated conditions prevents the appellant from obtaining or maintaining a substantially gainful occupation consistent with his education and work history. Therefore, the Board finds the appellant is unemployable and entitled to TDIU. 38 U.S.C. § 5107, 38 C.F.R. 4.16(a); Gilbert, 1 Vet. App. at 54. ORDER Entitlement to a 40 percent rating for diabetes mellitus is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs