Citation Nr: 18145420 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 09-35 436 DATE: October 29, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus is denied. REMANDED The claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to August 3, 2009, is remanded. FINDING OF FACT Diabetes mellitus has not required the avoidance of strenuous occupational and recreational activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913 (2018) REASONS AND BASES FOR FINDING AND CONCLUSION When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under DC 7913, a 20 percent disability rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The next higher disability rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). 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 warrants a 60 percent disability rating. A 100 percent disability rating is applicable for diabetes mellitus that requires more than one daily injection of insulin, restricted diet, and regulation of 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 rated. 38 C.F.R. § 4.119, DC 7913. The Board also observes that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent disability rating. Noncompensable complications are considered part of the diabetic process under DC 7913. Note (1). Here, the Veteran is in receipt of separate ratings for the service-connected coronary artery disease and peripheral neuropathy of the lower extremities, all associated with the service-connected diabetes mellitus. Summarizing the pertinent facts, diabetes was diagnosed in service and service connection for such was granted by a May 2000 rating decision at a disability rating of 20 percent under DC 7913. This rating has been continued and confirmed to the present time. The post service clinical evidence includes reports from a December 2004 VA diabetes examination, at which time it was indicated the Veteran had not been placed on insulin. The examiner did not find evidence of diabetes at that time. An April 2007 VA examination noted that the Veteran had been placed on insulin and that his blood sugar results varied from 87 to 300. There was no indication on the reports from this examination that diabetes necessitated the regulation of activities, and the examiner stated that the Veteran’s diabetes was well controlled with a combination of oral medications and insulin. Similar results were demonstrated at a November 2007 VA examination, which again did not indicate that diabetes necessitated the regulation of activities. Thereafter, a February 2013 VA examination noted that the Veteran’s diabetes was managed by a restricted diet, oral hypoglycemic agent, and an injection of insulin once per day. It was specifically noted by the examiner that diabetes did not necessitate the regulation of activities. At the most recent VA examination to assess the severity of the Veteran’s diabetes conducted pursuant to a March 2017 Board of Veterans’ Appeals remand that was conducted in March 2018, it was indicated that the Veteran’s diabetes was treated with an oral hypoglycemic agent and an injection of insulin more than once per day. It was specifically noted by the examiner that diabetes did not necessitate the regulation of activities. The examiner stated that diabetes precluded physical labor but not sedentary or light duty. VA treatment reports, currently of record dated through April 2018, do not reflect findings that differ in any significant way from those set forth above as relevant to the applicable rating criteria. In particular, these reports do not indicate that diabetes necessitates the regulation of activities. Applying the pertinent legal criteria to the facts set forth above, a rating in excess of 20 percent for diabetes—given that the criteria are listed in the conjunctive—is for assignment if management of this disability requires insulin, a restricted diet, and the regulation of activities. None of the clinical evidence set forth above indicates that the Veteran’s diabetes requires the regulation of activities as defined by the regulatory criteria listed herein. As such, the criteria for a schedular rating in excess of 20 percent for diabetes mellitus are not met. 38 C.F.R. § 4.119, DC 7913. REASONS FOR REMAND The Veteran is in receipt of TDIU effective from August 3, 2009, the earliest date he met the objective criteria for such an award under 38 C.F.R. § 4.16(a) (2018). However, there is potential evidence of unemployability due to service connected disability shown prior to that time, to include due to the impact of the Veteran’s August 2007 coronary bypass surgery. In this regard, a March 2008 VA outpatient treatment report reflects a three-day history of chest well pain, worsened with deep inspiration. In addition, a September 2008 statement from a private physician indicates that the Veteran’s health condition was worsening; that the Veteran was becoming incapacitated “more and more,” and that the Veteran was eager to find a job but was physically unable to due to frequent doctor’s appointments. Given the evidence above indicative of possible unemployability during a period of time prior to which the Veteran met the percentage standards under 38 C.F.R. § 4.16(a), the undersigned finds that this case must be referred to the Director of the VA Compensation and Pension Service (Director) for consideration of entitlement to TDIU on an extraschedular basis prior to August 3, 2009. 38 C.F.R. § 4.16(b). The claim for an earlier effective date for TDIU is REMANDED for the following action: 1. Submit the matter of entitlement to TDIU prior to August 3, 2009, to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b). To the extent favorable to the Veteran, the determination of the Director should be implemented. 2. If the determination by the Director does not result in an award of all benefits sought in connection with the claim for TDIU prior to August 3, 2009, the Veteran and his representative must be provided with a supplemental statement of the case. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review to the extent desired by the Veteran. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel