Citation Nr: 1804204	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-38 198A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 30 percent for the service-connected coronary artery disease.

2.  Entitlement to a disability evaluation in excess of 20 percent for the service-connected diabetes mellitus, type II.

3.  Entitlement to a disability evaluation in excess of 20 percent for the service-connected peripheral neuropathy of the right lower extremity.

4.  Entitlement to a disability evaluation in excess of 20 percent for the service-connected peripheral neuropathy of the left lower extremity.

5.  Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. 


REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and Son


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2).

The Veteran appellant served on active duty in the United States Marine Corps from August 1966 to August 1969, including nine months in Vietnam.

This case originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO denied a rating greater than 30 percent for coronary artery disease; a rating greater than 20 percent for diabetes mellitus, type II; a rating greater than 20 percent for peripheral neuropathy of the right lower extremity; a rating greater than 20 percent for peripheral neuropathy of the left lower extremity; and entitlement to a total rating based on individual unemployability (TDIU).  

In March 2015, the Board remanded the case for the scheduling of a Travel Board hearing as to these five issues on appeal.  The Veteran testified at a Travel Board hearing held in August 2017, before the undersigned Veterans Law Judge.  The transcript from that hearing has been associated with the record.  

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case must take into account the existence of this electronic record.

The four increased rating issues remaining on appeal are addressed in the REMAND portion of the decision below and those issues are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran last worked in April 2011; he has a high school education and he worked as a chef for 45 years.

2. With resolution of reasonable doubt in the Veteran's favor, the Veteran's service-connected disabilities have been shown to prevent him from securing and following substantially gainful employment. 


CONCLUSION OF LAW

The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met since May 1, 2011.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in statute and regulations.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  With regard to the TDIU issue, the decision below is considered a full grant of the benefit sought.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim given the favorable nature of the Board's decision herein. 

II. Merits of the Claim

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.

"Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to a Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  A TDIU may be assigned if 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 that 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.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

As of February 19, 2010, the Veteran's service-connected disabilities included coronary artery disease (30% rating); diabetes mellitus (20% rating); right lower extremity diabetic neuropathy (20% rating); and left lower extremity diabetic neuropathy (20% rating).  The combined evaluation for these service-connected disabilities was 70 percent.  For purposes of determining a single service-connected disability ratable at 40 percent or more, this includes "disabilities resulting from common etiology" which includes herbicide exposure.  38 C.F.R. § 4.16(a).  As such, the Veteran meets the threshold requirements for TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period. 

Moreover, resolving reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure and maintain any form of substantially gainful employment consistent with his education and occupational background due to his service-connected disabilities.  As reflected in his May 2011 TDIU application, the Veteran has a high school education.  He testified during his August 2017 Travel Board hearing that he had worked for 45 years as a chef.  As reflected in an October 2011 letter from the Veteran's last employer, his job required him to be on his feet for the entire shift and, due to his diabetic neuropathy, he was unable to perform his duties.  The employer also stated that the Veteran's last day of work was April 30, 2011.  A November 2011 letter from the Veteran's private treating podiatrist indicates that the podiatrist concluded that the severity of the Veteran's neuropathy precluded work because the Veteran's pain had increased, because the pain was intensified with standing and because the Veteran's proprioception in his lower extremities had decreased to the point that he was an extreme fall risk.  Letters dated in January 2017, from this podiatrist and two treating physicians indicated that the Veteran continued to be unemployable due to his service-connected disabilities.

The evidence of record indicates that the Veteran's service-connected disabilities have adversely affected his ability to stand and walk and his stamina due to chronic pain.  The Board notes that the ultimate TDIU determination rests with VA and not a medical examiner.  Here, the Board finds that the functional impairment resulting from the service-connected disabilities at least as likely as not results in the inability to obtain and/or retain substantially gainful employment. 

Based on the various manifestations of the Veteran's service-connected disabilities identified by the VA examiners and private health care personnel and his education and work history, the Board resolves reasonable doubt in favor of the Veteran and finds that evidence for and against the Veteran's claim is at least in relative equipoise on the question of whether the evidence of record supports the Board's conclusion that the Veteran is unemployable due to his service-connected disabilities.  See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) ("[A] mere theoretical ability to engage in substantial gainful employment is not sufficient... The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.").  As such, entitlement to a TDIU is warranted.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Accordingly, a total disability rating based on individual unemployability due to service-connected disabilities is warranted as of May 1, 2011. 


ORDER

Entitlement to TDIU is granted, effective May 1, 2011, and subject to criteria applicable to the payment of monetary benefits. 


REMAND

A determination has been made that additional evidentiary development is necessary.  Accordingly, further appellate consideration will be deferred; this case is remanded to the AOJ for action as described below.

The appellant last underwent a VA compensation examination for heart disease in December 2010, and his last VA compensation examination for diabetes-related pathology took place in November 2011.  VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995).  When available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, the appellant's last VA examinations are stale as they took place more than six years ago.  Because there may have been a significant change in the appellant's cardiac status and diabetes-related pathology during the past six years, new examinations are in order.  

The appellant has been assigned a 20 percent evaluation for his service-connected diabetes mellitus (DM), effective in August 2005.  Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, and a 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  The term "regulation of activities" is defined as the avoidance of strenuous occupational and recreational activities.  DC 7913.  In Camacho v. Nicholson, 21 Vet. App. 360 (2007), the United States Court of Appeals for Veterans Claims upheld VA's interpretation of DC 7913 to the effect that medical evidence is required to support a finding of a regulation of activities.  On remand, clarification is needed concerning whether (and when) the Veteran has ever had a medical need to avoid not only strenuous occupational activity, but also strenuous recreational activity.  

Furthermore, complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating.  Noncompensable complications are deemed part of the diabetic process under DC 7913, Note (1).  Separate compensation has been in effect for diabetic nephropathy since November 17, 2016.  Review of the evidence of record reveals that, as shown in private medical records received by VA in October 2012, the appellant had a diagnosis of chronic kidney disease, stage III at that time.  Inasmuch as the appellant's kidney disease has been classified as diabetic nephropathy, consideration of a separate evaluation for that nephropathy is part and parcel of the appellant's claim for an increased rating for his service-connected DM.  On remand, the RO must consider the assignment of a separate rating for diabetic nephropathy dating back to the date of the increased rating claim. 

Finally, the evidence of record does not contain any VA treatment records dated after April 2017.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  On remand, the RO should obtain all of the relevant private and/or VA treatment records not already of record and associate said records with the claims file.

Therefore, the Board has determined that further development is required prior to adjudicating the appellant's claims.  It is necessary to ensure that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c),(d). 

To ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following:

(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.  Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed.  

2.  Contact the Veteran and obtain the names and addresses of all VA or other government facilities that have treated him for his claimed disabilities since 2010.  After securing the necessary release(s), obtain such records.  

3.  Contact the Veteran and obtain the names and addresses of all private medical care providers who have treated him for his claimed disabilities since 2010.  After securing the necessary release(s), obtain such records.  In particular, complete records from the Veteran's nephrologist must be obtained.  

4.  If attempts to obtain records are unsuccessful, the Veteran and his representative must be informed of the negative results, the attempts made to obtain the records and what further actions will be taken; and be given opportunity to provide the records himself.

5.  Schedule the Veteran for a VA cardiology examination with an appropriate examiner to determine the current level of severity of his service-connected coronary artery disease (CAD), including the approximate level of dyspnea on exertion attributable to the CAD as opposed to the Veteran's other co-morbidities.  

The electronic record, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  The examiner must state in the report whether said electronic file review was done. 

The examiner must conduct all necessary testing, keeping in mind that the last examination report relied on testing from 2010, and that the Veteran reports that his condition has worsened.

Additionally, the examiner is asked to opine as to whether the Veteran's METs level is an accurate measure of the severity of the Veteran's CAD, and if not, whether it is possible to accurately determine the level of severity of the Veteran's CAD based on other objective testing and given the Veteran's other co-morbidities.  Is it possible to estimate what percentage of the Veteran's breathing difficulty is related to the CAD as opposed to his COPD and other medical conditions?  A complete rationale must be given for all opinions and conclusions expressed.  If the examiner is unable to provide the requested opinion(s), the examiner must explain why this is so. 

6.  After the above development is completed, schedule the Veteran for a VA medical examination by an appropriate examiner in order to accurately determine and delineate the extent and severity of the DM disability.  

The electronic record, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  The examiner must state in the report whether said electronic file review was done.

All necessary diagnostic tests must be conducted and the examiner must review the results of any testing prior to completion of the report.  The examiner must describe all symptomatology due to the appellant's service-connected DM disability.  All pertinent test results of record must be discussed.

After reviewing the electronic file and examining the Veteran, the examiner must describe:

a.  the onset date of the appellant's diabetic nephropathy and the severity/symptomatology of the nephropathy since that onset date with reference to pertinent laboratory testing results;

b.  whether the Veteran can engage in strenuous occupational activities, and if he has been unable to do so, whether that inability was/is based on limitations related to the diabetes disability;

c.  whether the Veteran can engage in strenuous recreational activities, and if he has been unable to do so, whether that inability was/is based on limitations related to the diabetes disability; and

d.  what specific sorts of the Veteran's activities, if any, have had to be regulated for medical reasons related to the diabetes disability.

7.  Review the claims file and ensure that all of the foregoing development has been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  Specific attention is directed to each examination report.  If any report does not include all adequate responses to the specific opinions requested, the report must be returned to the examiner(s) for corrective action.  

8.  Thereafter, readjudicate the Veteran's increased rating claims to include consideration of the assignment of a separate rating for diabetic nephropathy dating back to the date of the claim for an increased rating for DM.  The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations.

9.  If any benefit sought on appeal remains denied, provide a supplemental statement of the case (SSOC) to the appellant and his representative.  The SSOC must contain notice of all relevant actions taken on the appellant's claims considered pertinent to the increased rating issues currently on appeal.  An appropriate period of time for response must be allowed.

The Veteran is advised that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  Thereafter, the case should be returned to the Board, if in order.  

The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified. 

These claims 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. §§ 5109B, 7112 (2012).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs