Citation Nr: 1800968 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-11 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with associated erectile dysfunction. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION The Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1966 to September 1967. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2011, the Veteran testified at a Travel Board hearing at the RO in Jackson, Mississippi. A transcript has been associated with the claims file. In July 2011 and November 2014, the Board remanded the case for additional evidentiary development. In June 2016, the Board denied this claim. Upon the Veteran's appeal to the United States Court of Appeals for Veterans Claims (Court), the Court remanded the claim to the Board for action consistent with the terms of the Joint Motion for Remand (JMR) submitted by the parties. The matter is again before the Board. The Veteran's representative contends that the Veteran's claim includes a claim of entitlement to a TDIU. He argues that the Board must find that issue to be properly before it for consideration. The issue has not otherwise been developed for appellate review, and initial consideration by the originating agency is indicated. The issue will be addressed in the REMAND portion of this decision. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire rating period on appeal, the Veteran's service-connected diabetes mellitus, type II, with associated erectile dysfunction has not required regulation of activities. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with associated erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. In addition, the Board is satisfied that VA has substantially complied with the directives of the Board's previous remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was afforded Compensation and Pension examinations in February 2010, September 2011 and January 2015. The VA examinations were conducted by examiners holding degrees of Medical Doctor (M.D.) and were based on in-person examinations of the Veteran and thorough reviews of the clinical record, resulting in findings pertinent to deciding the claim for entitlement an increased evaluation of disability for diabetes mellitus, type II. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examinations adequate for their purposes. Moreover, 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). Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran asserts in numerous Statements in Support of Claim between April 2002 and March 2011, his February 2006 and March 2010 statements accompanying his VA Appeals Forms 9 and his March 2011 Board hearing testimony that, because of his diabetes disorder his activities are regulated to prevent a decrease in his blood sugar levels, as well as his disorder requiring insulin and his diet being restricted. He adds that based on this, he is entitled a 40 percent disability rating under Diagnostic Code 7913. He further asserts that the medical statements of his previous private treatment physician support his contention and are highly probative. The Veteran's Diabetes Mellitus, Type II Under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 20 percent rating is warranted where insulin is required and there is a restricted diet, or; use of an oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet and regulation of activities are required. 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 regulations 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 which would be compensable if separately evaluated. 38 C.F.R. § 4.119. The criteria for rating diabetes are "successive." Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). "Successive" criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 363. Medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words, a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id. Although VA regulations under 38 C.F.R. §§ 4.7, 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. Complications of diabetes mellitus are to be evaluated 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. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board notes that, in numerous RO rating decisions, the Veteran's service-connected disability has been characterized as diabetes mellitus, type II, with (noncompensable) erectile dysfunction and continued at the 20 percent disability rating. (He has been assigned special monthly compensation based on the loss of use of a creative organ.) The record contains a series of letters from the Veteran's previous private treatment physician, Dr. R.N., in which he makes medical statements. In regard to an increased disability rating of 40 percent under Diagnostic Code 7913, they state in relevant part: September 11, 2002: The Veteran has diabetes mellitus with insulin, restricted diet and regulation of activities. December 24, 2007: The Veteran requires "a restricted diet and has been asked to regulate his activities as a result of the severity and significance of his diabetic neuropathy." His symptoms are worsening and the Veteran "has to push himself to exercise." July 10, 2008: The Veteran's diabetes mellitus has grown worse. He requires insulin, a restricted diet and regulated activities. "It has also been recommended he attend Diabetic Education classes to try and help regulate his food intake and help regulate his diet." Diabetic neuropathy affects his "ability to do the activities which are required to assist with the alleviation of his symptomatology." March 31, 2009: To control the Veteran's blood sugars, "I have urged [the Veteran] to be on a restricted diet and a regimen for exercise to maintain a stabilized blood sugar." "This condition also affects his ability to do the activities, which are required to assist with the alleviation of his symptomatology." June 3, 2009: In continuing to try to stabilize the Veteran's blood sugars, "I have also ordered him to be on a restricted diet and a regimen for exercise to help maintain a stabilized blood sugar." In February 2010, the Veteran underwent VA examination for diabetes mellitus, in which the VA examiner stated his impression as type II diabetes, moderate with fair control improving, and Alc's (a component of hemoglobin to which glucose is bound) with increase in insulin therapy within the past six months. The February 2010 VA examiner noted that, although the Veteran has low blood sugar spells at least once a week, he has not had to restrict his activities because of hypoglycemia, he performs his activities of daily living and he does not restrict his activities on the basis of diabetes. In a September 2011 VA examination, the VA examiner diagnosed the Veteran with diabetes mellitus, type II. She noted that the Veteran was treated by a managed restricted diet, an oral hypoglycemic agent and prescribed insulin at more than one injection per day. It was further noted that no regulation of activities was required as part of the Veteran's management of his diabetes mellitus, type II. The September 2011 VA examiner concluded that the Veteran's diabetes was moderate and noting again that he does not have regulation of his activities, she stated that if he does not eat regularly, the Veteran will suffer hypoglycemic episodes. The September 2011 VA examiner noted that that the Veteran's activities consist of working in his garden and using a tractor; he cuts his yard with a riding mower, but he states his son now does most of the yard work; walks 10 minutes four to five days a week for exercise; cleans the kitchen; feeds the animals; rests; does other activities; and is independent in his activities of daily living. It was noted that the Veteran last worked in February 1997 in construction, when hurt his back on the job. In addition, it was further noted that his diabetes is not well controlled, as he does not follow his diet strictly, nor has he been eating on time as he should, leading to both hypoglycemic and hyperglycemic spells and confirming poorly controlled diabetes, although he has been prescribed a restricted diet. The September 2011 VA examiner emphasized that the Veteran's main problems with his diabetes are due to not following his diet closely and not eating on time. The record indicates that between March 2012 and February 2014, the Veteran was actively enrolled in a care coordination/home telehealth program at Jackson VA and monitored with an in-home messaging device. Questions addressing the Veteran's occasional low blood sugar included whether the Veteran had increased physical activities. However, it was also stressed that complications can be minimized or avoided through medication compliance, exercise and diet. Possible causes of low blood sugar were identified as delayed meals, not eating enough, too much diabetes medication, and unplanned strenuous activity. For example, in October 2012, the Veteran was advised not to skip or delay meals "because he is out working" on an around his property. The Veteran's treatment regimen included numerous restriction of what meals to eat and when to eat them. For example, although the increased activity of clearing his garden the previous day for tomato planting was reported by the Veteran in January 2014, this activity was only significant because it appears to have delayed a meal thereby possibly providing a reason for low blood sugar. In regard to monitoring and evaluation, the Veteran was to be advised on his knowledge of foods containing carbohydrates; on counting carbohydrates; label reading; planning and preparation of foods; general diet compliance; and diet scheduling. In addition, physical inactivity in relation to obesity was to be avoided and the Veteran was to be instructed to increase his activity as tolerated and balance calories consumed and expended to promote weight loss. In January 2015, the Veteran again presented for a VA examination, in which the VA examiner noted that the Veteran's disorder was managed by restricted diet, oral hypoglycemic agent(s) and insulin. He stated the 1996 diagnosis of diabetes mellitus, type II. Complications of diabetic peripheral neuropathy, diabetic retinopathy and erectile dysfunction were noted. The January 2015 VA examiner noted that the Veteran does not require regulation of his activities as part of the medical management of his diabetes mellitus. Although recording the Veteran's reports of occasional low blood sugar, he also noted that the Veteran did not describe any hypoglycemia with physical activity; he remains physically active by walking for exercise; he has not had to call for emergency help because of hypoglycemia; and has not had to visit the emergency room or be in hospital for hypoglycemia. Additionally, the January 2015 VA examiner observed that review of the Veteran's treating doctor's notes did not indicate any instruction to restrict activities, but rather he had been advised to exercise. In February 2015, the January 2015 VA examiner opined that the Veteran's diabetes mellitus, type II is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. In specifically addressing the question of whether, due to his disorder, the Veteran requires the regulation of his activities in addition to his diet restrictions and medications, the January 2015 VA examiner explained that regulation of activities is usually required to control unstable diabetes exhibiting rapid precipitous fluctuations in blood glucoses causing severe hypoglycemia and/or hyperglycemia, resulting in frequent and/or prolonged hospitalizations for ketoacidosis and/or severe hypoglycemia. However, he observed that a review of the Veteran's clinical data does not indicate findings consistent with unstable diabetes, noting that, although the Veteran has episodes of hypoglycemia, he has not had severe hypoglycemia requiring hospitalization and his hypoglycemia and poor diabetic control have been attributed to non-compliance with his diabetic regimen. In support of his observations, the January 2015 VA examiner included February 2015 excerpts from progress notes at Jackson VA, in which after six years in the CCHT diabetes telehealth management program, the Veteran voluntarily signed himself out after an excellent participation record, no hospitalizations since enrollment and the belief that he had reached the maximum benefit of the program even though his diabetes remained "uncontrolled." However, the co-ordination of care provider also noted that, although the Veteran still frequently experiences low blood sugars, this is directly related to his report of missing, skipping or delaying meals or not eating a sufficient amount at meal times and not omitting bed-time snacks, despite education and frequent reinforcement of education. She nonetheless advised the Veteran that he must take an active role in his health care by complying with his treatment regimen, following his diet, taking medications, and exercising. The January 2015 VA examiner further observed that his review of the Veteran's treatment records at the Jackson VA does not indicate that the Veteran has been instructed to restrict his physical activities. He pointed to the example of the Veteran's treating physician at Jackson VA, who instructed him in a November 2014 letter, stating that his blood sugars were still of out of control and reminded him to takes his medication, follow his diet and exercise regularly. The January 2015 VA examiner also reviewed the letters of Dr. R.N., the Veteran's previous private treating physician, referring the following excerpts or paraphrases: In his letter of December 24, 2007 he notes the Veteran "has been asked to regulate his activities as a result of the severity and significance of his diabetic neuropathy." July 10, 2008: "[H]e is now requiring insulin twice a day along with a restricted diet and regulated activities to help control his blood sugar." March 31, 2009: Dr. R.N. indicates that he has asked the Veteran to be on a restricted diet and a regimen of exercise to maintain a stabilized blood sugar. July 3, 2009: "I have urged [the Veteran] to be on a restricted diet and a regimen of exercise to maintain a stabilized blood sugar." The January 2015 VA examiner concluded that the findings in these letters do not provide a substantiating rationale for restriction of the Veteran's activities; his present treating provider supports that the Veteran regularly exercise and follow his diet to help manage his diabetes, but not advising restriction of activities; and the current findings do not support the need for the Veteran to restrict his activities to control his diabetes. The JMR and the Veteran's Arguments As stated earlier in this decision, the Veteran asserts that Dr. R.N.'s series of letters between September 2002 and June 2009, set forth above, state that the Veteran has regulated activities and he contends that this, in conjunction with a restricted diet and prescribed insulin, satisfies the requirements for a 40 percent disability rating under Diagnostic Code 7913. Both the JMR and the Veteran's representative assert that the Board in its June 2016 decision failed to discuss in sufficient detail why it found the January 2015 VA examination more probative than Dr. R.N.'s medical statements in his letters. The Board notes at the outset that, although Dr. R.N. states in his September 2002, December 2007 and July 2008 letters that regulated activities apply to the Veteran's diabetes, he does not state the nature of the regulation and to what activities it applies. Moreover, the September 2002 letter states that the Veteran "has" regulated activities; the December 2007 letter states that he "has been asked to regulate his activities;" and the July 2008 letter states that he "requires...regulated activities." Furthermore, once the dates of these medical statements enter into year 2009 and therefore closer in proximity to Veteran's current condition, regulation of activities are no longer mentioned, but rather activities now seem to refer to exercise, specifically a regimen of exercise, the execution of and to which the Veteran has variously been "urged" and "ordered." From the above, the Board cannot determine the exact nature of the earlier regulated activities, whether they were at any time consistently and absolutely necessary to prevent hypoglycemic episodes and is further left with the impression that whatever the nature or necessity may have been, by 2009 and presumably afterward, the recommendation of exercise for blood sugar stabilization superseded previous precautions. This appears to be inconsistent with assertions that the Veteran's activities were regulated. See Camacho v. Nicholson, 21 Vet. App. 360, 365, 366 (2007). Additionally, in its review of the record above, the Board has noted that the Veteran's diabetes management program at Jackson VA stated as possible causes of low blood sugar "unplanned strenuous activities," thereby, by implication at least, discouraging "unplanned strenuous activities." Yet, the Board can reasonably conclude that the "unplanned" aspect of strenuous activities is the determinative restrictive aspect. That is to say, as indicated in treatment notes between March 2012 and February 2014, as well as the January 2015 VA examiner's discussion of the Veteran's treatment at Jackson VA, the Veteran's care providers were consistently concerned with the Veteran's failure to comply with his management regimen in the kind of food he ate, his delayed meal times, failing to eat enough, his skipped meals, his bed-time snacks, and his failure to take medications. As stated above, the January 2015 VA examiner had observed that the Veteran's clinical data not only did not reveal findings of consistent unstable diabetes, the Veteran hypoglycemic episodes have been attributed to non-compliance with his diabetic regimen. The Veteran's own testimony at his March 2011 Board hearing indicates readily that he was very much aware of his lack of adherence to his diabetes management instructions, stating to the undersigned at one point that "I'm not gonna tell you I don't eat apple pie and ice cream, because I do." More to the point, the Veteran also stated that, when gardening or mowing on his property, if he worked in the heat, his blood sugars would drop dramatically. All of the foregoing leads the Board to conclude that the record does not indicate that the Veteran at any time was cautioned against performing certain activities, even strenuous activities, but was forewarned about them being unplanned. By extension and based on the record, "unplanned" means that the Veteran should not engage in what might be strenuous if he is eating the wrong food, delaying meals to the point of feeling ill, failing to eat enough, skipping meals, substituting off-schedule snacks, performing the activities in excessive conditions of heat, or failing to take his medications. In other words, the Veteran can continue to do activities safely, provided he plans to do them when he is in strict compliance with his diabetes management regimen. As stated above, between March 2012 and February 2014, Jackson VA providers stressed that complications can be minimized or avoided through medication compliance, exercise and diet. As stated above, the Veteran was advised in October 2012, do not skip or delay meals "because he is out working" on and around his property. That proposed scenario suggests instances of work on his property which would not have been properly planned, since the Veteran would be exerting himself without having prepared for it by eating the correct foods and on eating them on schedule. In fact, the Veteran had reported clearing his garden for tomato planting in January 2014 and a subsequent low blood sugar episode. His program care provider suggested this particular activity had delayed a meal and presented the possible reason for the low blood sugar count which followed, from which again it can be concluded that the activity was not planned out to account for the Veteran's need of a scheduled meal. Conclusion The Board has carefully reviewed and considered the Veteran's March 2011 Board hearing testimony, as well as his numerous statements, to include his Statements in Support of Claim from April 2002 to March 2005; his February 2006 and March 2010 statements accompanying his VA Appeals Forms 9; and his Statements in Support of Claim from February 2008 to March 2011. Additionally, the Board has reviewed the Veteran's reports during examinations, as they appear throughout the record. All of these have assisted the Board in understanding better the nature and development of the Veteran's disability. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately findings pertaining diabetes and its associated complications, as this requires highly specialized knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications of worsening signs and symptoms, it must rely on medical findings and opinions to establish the level of the Veteran's current disability. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As stated earlier in this decision, Dr. R.N.'s medical statements present a lack of detail and inconsistent terminology as to any "regulated activities." From this, the Board is unable to discern what clinical data points to what was regulated and the basis of the necessity. Moreover, Dr. R.N. himself ultimately opted for describing his recommendations to include a regimen of exercise. This does not otherwise amount to restriction or suggest regulation other than the Veteran be active in exercise. For these reasons and those stated earlier, the Board finds the medical statements of Dr. R.N. to be of limited probative value. The February 2010 VA examiner stated that the Veteran has not had to restrict his activities because of hypoglycemia, he performs his activities of daily living and he does not restrict his activities on the basis of diabetes. The September 2011 VA examiner stated that no regulation of activities was required as part of the Veteran's management of his diabetes and went on to emphasize that his problems arise when he does not follow his diet closely and does not eat on time. The January 2015 VA examiner stated that the Veteran's treatment notes did not indicate any instruction to restrict activities, but rather he was advised to exercise. Moreover, in his February 2015 opinion, he explained that regulation of activities is used to control unstable diabetes, specifically to prevent fluctuating blood sugar levels. The January 2015 VA examiner, after a review of the Veteran's clinical data, observed that there were no findings consistent with unstable diabetes, noting that, although the Veteran has episodes of hypoglycemia, he has not had severe hypoglycemia requiring hospitalization and his hypoglycemia and poor diabetic control have been attributed to non-compliance with his diabetic regimen. As support for this conclusion, the January 2015 VA examiner pointed to February 2015 diabetes management care notes indicating the Veteran's deficiencies in adhering to and implementing his management regimen. In looking to Dr. R.N.'s medical statements in his letters of December 2007, July 2008, March 2009, and July 2009, the January 2015 VA examiner concluded that the findings in these letters do not provide a substantiating rationale for restriction of the Veteran's activities. He added that the Veteran's present treating provider supports that the Veteran regularly exercise and follow his diet to help manage his diabetes, but not advising restriction of activities and current findings do not support the need for the Veteran to restrict his activities to control his diabetes. Because the January 2015 VA examiner supported his conclusions by reference to the details of the Veteran managed diabetes care, by clinical findings and by a reasonable explanation of when regulated activities would be necessary in managing diabetes, as well as examining the medical statements of Dr. R.N., the Board finds that the findings, opinion and rationale of the January 2015 VA examiner have significant probative value. For the reasons stated and based on the findings of the February 2010 and September 2011 VA examiners and the findings, opinion and rationale of the January 2015 VA examiner, the Board further finds that the record does not contain medical findings, an adequate opinion or a supporting rationale which establishes a 40 percent disability rating under Diagnostic Code 7913 for the Veteran's claim for entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with associated erectile dysfunction. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with associated erectile dysfunction, is denied. REMAND In regard to the issue of TDIU, the Veteran has submitted a VA Form 21-8940, dated October 15, 2017. However, there as yet has been no adjudication of this issue by the AOJ. Moreover, the evidence of record lacks further information which, if existing, may be pertinent to determining unemployability, to include by way of example the Veteran's employment history, claims for state unemployment benefits, workers compensation claims and benefits, claims for Social Security benefits, medical records directly related to job-related injuries or illnesses, and the Veteran's education history. Therefore, the record is incomplete and initial review by the AOJ is indicated. A remand is necessary for development. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and/or his representative for information pertaining to any medical treatment at any VA facility and by any private treatment provider directly related to job-related injuries or illnesses. Obtain those records and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records as indicated. 2. Contact the Veteran and/or his representative and request that the Veteran provide any documentation pertaining to employment history, claims for state unemployment benefits, workers compensation claims and benefits, claims for social security benefits, medical records, and the Veteran's education history, as well as any other documentary material the AOJ deems necessary for the Veteran's claim for a TDIU. Obtain those records and associate them with the claims file If the Veteran cannot provide all or some of this documentation, request information from him or his representative as to where such documentation might be found. Obtain those records and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records as indicated. Schedule any examinations and undertake any additional development needed as to a TDIU claim including appropriate notice to the appellant and his attorney. 3. Inform the Veteran of the inquiries and efforts to obtain records. All inquiries and efforts to obtain records directed in this REMAND should be documented and associated with the claims file. 4. Adjudicate the issue in accordance with applicable procedures once all notice and development have been accomplished, and return the matter to the Board in accordance with applicable procedures as needed. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs