Citation Nr: 1804532 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-05 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus type II (herein diabetes). 2. Entitlement to a disability rating in excess of 80 percent for chronic kidney disease. 3. Entitlement to a disability rating in excess of 30 percent for recurrent dislocation of the right shoulder (herein right shoulder disability). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. A February 2012 rating decision denied the Veteran's September 2011 claim for entitlement to a TDIU. The Veteran submitted a February 2013 notice of disagreement (NOD) as to this rating decision in regards to the TDIU issue. A September 2014 Statement of the Case (SOC) addressed only the TDIU issue and the Veteran filed a February 2014 VA Form 9 (Appeal to [the Board]). An April 2015 Supplemental Statement of the Case (SSOC) listed, in addition to the TDIU issue, the three increased rating claims listed on the cover page. For each increased rating claim, the SSOC stated "if a veteran claims that a service-connected disability not on appeal causes his unemployability and the rating decision denying individual unemployability fails to increase the evaluation of the disability to the schedular maximum, the disability will also be considered in appellate status." As such, the Agency of Original Jurisdiction (AOJ) treated the three increased rating claims as being on appeal as part of the TDIU claim, which as noted, was filed in September 2011. The Veteran testified at a September 2016 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Subsequent to the April 2015 SSOC, additional evidence was added to the record. In December 2017, the Veteran's representative waived AOJ review of evidence added to the record following the April 2015 SSOC. The issue of entitlement to a disability rating in excess of 30 percent for a right shoulder disability is addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's diabetes has not required insulin or the regulation of activities. 2. The Veteran's chronic kidney disease has not required regular dialysis or precluded more than sedentary activity. 3. Service connected disabilities, combined 90 percent, render the appellant unemployable. CONCLUSIONS OF LAW 1. A disability rating in excess of 20 percent is not warranted for the Veteran's diabetes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). 2. A disability rating in excess of 80 percent is not warranted for the Veteran's chronic kidney disease. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7530 (2017). 3. The criteria for TDIU are met. 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Diabetes Legal Criteria As noted in the Introduction, the AOJ has treated the issue of entitlement to a disability rating in excess of 20 percent for diabetes as being on appeal as part of the TDIU claim, which was filed in September 2011. An August 2011 rating decision granted entitlement to service connection for diabetes and assigned a 20 percent disability rating under Diagnostic Code 7913 based on requiring oral hypoglycemic agent and restricted diet (a December 2011 rating decision continued the assigned disability rating). Diagnostic Code 7913 (Diabetes Mellitus) provides that a 20 percent disability rating is warranted for requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent disability rating is warranted for requiring insulin, restricted diet, and regulation of activities. The 100 percent disability rating criteria references regulation of activities as "avoidance of strenuous occupational and recreational activities." Still higher disability ratings (60 percent and 100 percent) are warranted based on the same three criteria as the 40 percent disability rating (insulin, restricted diet and regulation of activities), plus additional requirements. Analysis The Veteran has been assigned a 20 percent disability rating for his diabetes throughout the appeal period. The next higher disability rating, 40 percent, requires insulin, restricted diet and regulation of activities. Overall, the evidence of record did not show that the Veteran's diabetes has required insulin or the regulation of activities and as such, entitlement to an increased disability rating is not warranted. With respect to insulin, the evidence of record variously indicated that the Veteran's diabetes was treated by oral hypoglycemic agents, such as OSENI, Actos or Januvia, and did not indicate that he was treated with insulin. This evidence included various VA treatment records, private medical records and VA examination reports. For example, an October 2011 Diabetes Mellitus Disability Benefits Questionnaire (DBQ) noted that the Veteran's treatment included an oral hypoglycemic agent and left blank items relating to insulin treatment. A November 2014 Diabetes Mellitus DBQ did not state that the Veteran's treatment included insulin, but rather noted treatment of oral hypoglycemic agents, specifically Oseni. In addition, at the September 2016 Board hearing, the Veteran specifically stated that he was not on insulin and that he was taking oral medication. See September 2016 Board Hearing Transcript, Page 9. Further, private medical records dated in March and April 2017 also listed a medication of Oseni. Overall, the evidence did not indicate that the Veteran's diabetes required insulin and the Veteran has not contended otherwise. With respect to regulation of activities, such was not shown by the evidence of record. In this regard, October 2011 and November 2014 Diabetes Mellitus DBQs specifically noted that the Veteran did not require regulation of activities as part of medical management of his diabetes. These DBQs also noted that the Veteran's diabetes would not impact his ability to work. The October 2011 General Medical DBQ included a statement that "[r]egarding diabetes alone, this would not limit his ability to work, and would be capable of sedentary to light work based on his diabetes." A January 2012 VA examination report stated that the Veteran "would be capable of light and at least sedentary work on the basis of his diabetes." The November 2014 DBQ stated that "[b]ased on review of his history I do not find any functional impairments caused solely by his service connected diabetes." Also, various VA primary care physician treatment records, which discussed diabetes, included references to the Veteran keeping active. For example, a July 2016 note stated "encouraged to keep active daily as much as possible," a July 2015 note stated "keep active more..[.]exercise daily as much as possible-walking, swimming" and a December 2014 note stated "keep active..[.]exercise daily 20-30 minutes..[.]riding a stationary bike." These statements indicated that the Veteran's activities were not regulated. Also, at the September 2016 Board hearing the Veteran's representative stated regarding diabetes that "you still have to do it by exercise and try to maintain the best way you can?," to which the Veteran responded "I've tried the best I can." Overall, the evidence did not indicate that the Veteran's diabetes required the regulation of activities and the Veteran has not contended otherwise. In sum, the Board finds that the Veteran's diabetes has not required insulin or the regulation of activities. As such, the Veteran has not met the requirements for the next higher 40 percent disability rating, which requires insulin and the regulation of activities. A still higher disability rating (60 percent or 100 percent) is not warranted under Diagnostic Code 7913, as such also require insulin and the regulation of activities (as well as additional requirements). Overall, the Board concludes that a disability rating in excess of 20 percent is not warranted for the Veteran's diabetes and to this extent the claim must be denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). II. Chronic Kidney Disease Legal Criteria As noted in the Introduction, the AOJ has treated the issue of entitlement to a disability rating in excess of 80 percent for chronic kidney disease as being on appeal as part of the TDIU claim, which was filed in September 2011. An August 2011 rating decision granted entitlement to service connection for chronic kidney disease and assigned an 80 percent disability rating under Diagnostic Code 7913-7530 based on BUN more than 40mg% and slight edema (a December 2011 rating decision continued the assigned disability rating). Diagnostic Code 7530 (Chronic renal disease requiring regular dialysis) instructs to rate as renal dysfunction, which is outlined in 38 C.F.R. § 4.115a (2017). An 80 percent disability rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent disability rating is warranted for requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Analysis The Veteran has been assigned an 80 percent disability rating for his chronic kidney disease throughout the appeal period. The next higher disability rating, 100 percent, requires either regular dialysis or the preclusion of more than sedentary activity (based on one of four requirements). Overall, the evidence of record does not show that the Veteran's chronic kidney disease has required regular dialysis or precluded more than sedentary activity and as such, entitlement to an increased disability rating is not warranted. With respect to regular dialysis, such was not shown by the evidence of record. In this regard, October 2011 and November 2014 Kidney Conditions (Nephrology) DBQs specifically noted that the Veteran did not require regular dialysis and a January 2012 VA opinion also stated that the Veteran had not had dialysis. In addition, the VA treatment and private medical records did not otherwise note regular dialysis. Further, at the September 2016 Board hearing the Veteran specifically stated that he was not on dialysis. See September 2016 Board Hearing Transcript, page 9. Overall, the evidence did not indicate that the Veteran's chronic kidney disease required regular dialysis and the Veteran has not contended otherwise. With respect to the preclusion of more than sedentary activity, such was not shown by the evidence of record. In this regard, the October 2011 Kidney Conditions DBQ stated that the Veteran did not have any signs or symptoms due to renal dysfunction and left blank follow up check boxes of "[l]imitation of exertion due to renal dysfunction" and "[a]ble to perform only sedentary activity, due to persistent edema caused by renal dysfunction." It was also noted that the Veteran's kidney condition did not impact his ability to work. The October 2011 General Medical DBQ also stated regarding the Veteran's chronic kidney disease that "[h]e has felt well. Denies any major lifestyle changes related to Nephropathy" and that "[h]e denies symptoms of kidney failure such as nausea, chronic fatigue, anemia, etc." It was also noted that Veteran had "peripheral edema related to the nephropathy" and that "[h]e would have difficulty with heavy lifting, stamina, prolonged standing based on his arthritis of his knees, left ankle, and his chronic swelling and stasis changes." This statement does not indicate that the Veteran's service-connected chronic kidney disease, to include chronic swelling and stasis, alone would preclude more than sedentary activity, as nonservice-connected disabilities of the knees and left ankle were also referenced. Also, this statement referenced that the Veteran would "have difficulty" with heavy lifting, stamina and prolonged standing and did not state that such activity would be precluded. A January 2012 VA opinion stated that the Veteran "has felt well and denies any major lifestyle changes related to Nephropathy...He has some peripheral edema controlled but attributable to chronic kidney disease. He denies symptoms of renal failure such as nausea, chronic fatigue, anemia, etc." It was also stated that "[h]e also has chronic left ankle pain and chronic swelling as well as stasis changes [nonservice-connected] which would make it difficult to do any prolonged standing or walking." This statement does not indicate that the Veteran's service-connected chronic kidney disease, to include chronic swelling and stasis changes, alone would preclude more than sedentary activity, as a nonservice-connected disability of the left ankle was also referenced. Also, this statement referenced prolonged standing or walking as being made "difficult," and did not state that such activity would be precluded. The November 2014 Kidney Conditions DBQ stated that the Veteran "has not had any symptoms d[ue] to" chronic kidney disease. It was also noted that the Veteran did not have any signs or symptoms due to renal dysfunction. It was noted that the Veteran's kidney condition would not impact his ability to work. The DBQ also stated that "[b]ased on review of his history I do not find any functional impairments caused solely by his service connected...chronic kidney disease." In addition, as referenced in the Diabetes section above, various VA primary care physician treatment records, which discussed chronic kidney disease, included references to the Veteran keeping active, to include references to walking, swimming and riding a stationary bike. These statements indicated that the Veteran was not precluded from more than sedentary activity, to include as a result of his chronic kidney disease. Similarly, at the September 2016 Board hearing, the Veteran referenced exercise while discussing diabetes and also as related to his right shoulder disability, further indicating that the Veteran was not precluded from more than sedentary activity, to include as a result of chronic kidney disease. See September 2016 Board Hearing Transcript, pages 7, 9, 10. Also, the Board acknowledges that in the Veteran's February 2013 NOD he stated that "I disagree with the finding that I would be capable of light or at least sedentary work based on decreased stamina due to chronic kidney failure." In addition, in a statement accompanying the February 2014 VA Form 9, the Veteran stated that "[m]y stamina and strength has decreased since my last VA exam in January [] 2012, to a point where it would be a struggle for me to complete a 40 hour work week similar to my last gainful full time employment" and that "[a]t that appointment I fell in the doctor's office and was unable to get myself up and that is a constant worry of mine." As noted, subsequent to these statements, the Veteran was afforded a VA examination in November 2014. The November 2014 Kidney Conditions DBQ noted that the Veteran did not have any signs or symptoms due to renal dysfunction and stated that "[b]ased on review of his history I do not find any functional impairments caused solely by his service connected...chronic kidney disease." In addition, as referenced, VA treatment records dated after the Veteran's statements included references to the Veteran keeping active, to include references to walking, swimming and riding a stationary bike, and at the September 2016 Board hearing the Veteran referenced exercise. As such, even assuming (without deciding) for purposes of this decision that the Veteran's stamina and strength was impacted by his chronic kidney disease, the evidence does not indicate that such impacted resulted in the Veteran being precluding from more than sedentary activity. Overall, the evidence did not indicate that the Veteran's chronic kidney disease precluded more than sedentary activity. In sum, the Board finds that the Veteran's chronic kidney disease has not required regular dialysis or precluded more than sedentary activity. As such, the Veteran does not meet the requirements for the next higher 100 percent disability rating, which requires either regular dialysis or the preclusion of more than sedentary activity (based on one of four requirements). Overall, the Board concludes that a disability rating in excess of 80 percent is not warranted for the Veteran's chronic kidney disease and to this extent the claim must be denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7530 (2017). In addition, the Board acknowledges that in a statement accompanying the February 2014 VA Form 9 the Veteran stated, in regards to nephropathy, that "I have felt generally well and have adapted to certain life style changes that I did not mention to the examiner, probably because I was having difficulty accepting certain limitations" and referenced urinary urgency and frequent urination. While acknowledging the Veteran's symptoms, the competent evidence did not indicate that such symptoms are related to his chronic kidney disease. As noted, the subsequent November 2014 Kidney Conditions DBQ noted that the Veteran did not have any signs or symptoms due to renal dysfunction. Also, evidence of record referenced the Veteran as having prostate disabilities, to include an enlarged prostate and benign prostatic hypertrophy, and VA treatment records noted an assessment of overactive bladder. In addition, an April 2017 private cardiology record stated that the Veteran "said he did have problems with urinary urgency. He thought this was related to his bladder. He also has been told he had an enlarged prostate, but more recently, it was described as decreased in size." Overall, the competent evidence did not associate any urinary symptoms with the Veteran's chronic kidney disease. III. TDIU The decision to grant or deny tdiu rests with the adjudicator. 38 C.F.R. § 3.340(3)(iii). The service connected disabilities are as follows: CHRONIC KIDNEY DISEASE ASSOCIATED WITH DIABETES MELLITUS TYPE II 80% from 10/18/2010 5051 RECURRENT DISLOCATION OF THE RIGHT SHOULDER 30% from 10/18/2010 7005 CORONARY ARTERY DISEASE [Agent Orange - Vietnam/Ischemic Heart Disease] 30% from 04/27/2017 7913 DIABETES MELLITUS TYPE II [Agent Orange - Vietnam/Diabetes] 20% from 10/18/2010 6260 BILATERAL TINNITUS (CLAIMED AS RINGING IN BOTH EARS) 10% from 09/08/2011 7522 ERECTILE DYSFUNCTION ASSOCIATED WITH DIABETES MELLITUS TYPE II 0% from 10/18/2010 6100 BILATERAL HEARING LOSS 0% from 09/08/2011 COMBINED EVALUATION FOR COMPENSATION: 90% Percent In the opinion of this VLJ, service connected disability renders the appellant unable to obtain and retain substantially gainful employment. IV. General Issues Finally, as applicable to the issues being decided discussed above, neither the Veteran nor his representative has raised issues with respect to VA's duty to notify or assist or presented other procedural arguments. 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). ORDER Entitlement to a disability rating in excess of 20 percent for diabetes is denied. Entitlement to a disability rating in excess of 80 percent for chronic kidney disease is denied. REMAND The Veteran was most recently afforded a VA examination for his right shoulder disability in October 2011. The United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested or pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The prior VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. In addition, at the September 2016 Board hearing, the Veteran stated that "[t]he shoulder has, in the last three months, given me some pain on lifting my arms and stuff like that" and "so I talked to my rehab person...where I live and she gave me some exercises to do to loosen up my arm and stuff and I did those and it did help." The referenced treatment appears to be private medical treatment, as VA treatment records dated during the referenced time period did not reference rehabilitation treatment for the right shoulder. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records related to the rehabilitation referenced at the September 2016 Board hearing, or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (2017) (stating "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records"). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, to include any records related to the rehabilitation referenced at the September 2016 Board hearing, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Afford the Veteran an appropriate VA examination to determine the current severity of his right shoulder disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. 3. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs