Citation Nr: 18145919 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-63 480 DATE: October 30, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II with erectile dysfunction requires insulin and a restricted diet, but not regulation of activities. 2. The Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of the Veteran Affairs (VA) Regional Office (RO). Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In the instant case, the Veteran filed his claim for increase on September 29, 2016. Therefore, the period under consideration for the Veteran’s claims for increased ratings for diabetes begins on September 29, 2015, which is one year prior to the date the claim for increase was filed. The Veteran’s diabetes mellitus, type II with erectile dysfunction has been rated under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2017). Diagnostic Code 7913 provides that requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet is rated 20 percent disabling. Requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. 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 is rated 60 percent disabling. Requiring more than one daily injection of insulin, restricted diet, and 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 is rated a maximum 100 percent disabling. The rating criteria for diabetes are successive. See 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 v. Nicholson, 21 Vet. App. at 363. Medical evidence is required to support this criterion; 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. at 364. 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). Here, the Board notes that the Veteran’s service-connected diabetes mellitus, type II is evaluated as 20 percent disabling. I. Entitlement to service connection for diabetes mellitus type II with, with erectile dysfunction The Veteran contends that his diabetes mellitus, type II is more disabling than reflected by the 20 percent rating he is currently assigned. In November 2016, the Veteran underwent a VA examination to assess the severity of his diabetes mellitus, type II. The examination report indicates that insulin is required with the need for one injection per day. The examination report also indicates that the Veteran’s diabetes, type II did not require regulation of activities. The examination report also indicates that the frequency of visits with a diabetic care provider for episodes of ketoacidosis or hypoglycemia was less than two times per month. The report indicates that there were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions for the past 12 months. The report indicates that the Veteran has not had progressive, unintentional weight loss and loss of strength attributable to diabetes mellitus. The report indicates that complications of the Veteran’s diabetes includes peripheral neuropathy and erectile dysfunction. Additionally, the report indicates that there were no other pertinent physical findings or complications. The Board further notes that the Veteran is separately service connected for peripheral neuropathy. In February 2018, the Veteran underwent another VA examination. The examination report indicates that insulin is required with the need for two injections per day. The examination report also indicates that the Veteran’s diabetes, type II did not require regulation of activities. The examination report also indicates that the frequency of visits with a diabetic care provider for episodes of ketoacidosis or hypoglycemia was less than two times per month. The report indicates that there were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions for the past 12 months. The report indicates that the Veteran has not had progressive, unintentional weight loss and loss of strength attributable to diabetes mellitus. The report indicates that complications of the Veteran’s diabetes includes diabetic peripheral neuropathy and erectile dysfunction. Additionally, the report indicates that there were no other pertinent physical findings or complications. The Veteran also submitted a private disability benefits questionnaire, dated in June 2018. The examination report indicates that his diabetes is managed by a restricted diet and that insulin is required with the need for one injection per day. The examination report also indicates that the Veteran’s diabetes, type II did not require regulation of activities. The examination report also indicates that he did not have a need for a diabetic care provider for episodes of ketoacidosis or hypoglycemia. The report indicates that there were no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions for the past 12 months. The report indicates that the Veteran has not had progressive, unintentional weight loss and loss of strength attributable to diabetes mellitus. The report also indicates that the Veteran had diabetic peripheral neuropathy as a complication of diabetes mellitus. Additionally, the report indicates that there were no other pertinent physical findings or complications. There are also lay statements of record. In a July 2017 notice of disagreement, the Veteran stated that his condition requires more than one daily injection of insulin, a restricted diet, and a regulation of activities. In a November 2017 VA Form 9, the Veteran indicated that his diabetes had gotten worse because his dosage of insulin that he is required to take has increased to two shots. He further indicated that the condition is aggravating and has caused other conditions. Having reviewed the evidence, the Board finds that a rating in excess of 20 percent is not warranted. The Board acknowledges that the November 2016, February 2018, and June 2018 examiners indicated that the Veteran does not require regulation of activities due to diabetes. Camacho does require a medical determination that regulated activities are required due to diabetes. Therefore, the Veteran’s conclusory statement, in his July 2017 NOD, is not sufficient to establish that the Veteran’s diabetes requires regulation of activities. Specifically, the Court in Camacho makes it clear that the term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities” and that 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. at 363, 364. There is no indication in the record that the Veteran must curtail his activities so as to avoid strenuous activity due to his diabetes, and the Board finds that the medical evidence does not establish that regulation of activities is required. Instead, in a VA treatment record dated in August 2016, the Veteran was encouraged to increase his physical activity as tolerated for weight control. Accordingly, a 40 percent rating is not warranted. The Board acknowledges the Veteran’s contentions that he takes higher and more dosages of insulin than when he was initially diagnosed with diabetes. The Board also acknowledges that the February 2018 examiner indicated that the Veteran has to take insulin more than once a day. However, given that provisions for a 40 percent rating are directly incorporated into the criteria for 60 and 100 percent ratings, it follows that as the requirements for a 40 percent rating are not met, the next higher ratings under Diagnostic Code 7913 do not apply. Tatum v. Shinseki, 23 Vet. App. at 152 (2009). In sum, as the Veteran’s diabetes has manifested in the requirement of insulin and a restricted diet but does not require regulated activities, the Board determines that a disability rating of 20 percent, but no higher, for the Veteran’s diabetes mellitus, type II with erectile dysfunction is warranted. Accordingly, the Board finds that the preponderance of the evidence does not support the Veteran’s claim for an increased rating for diabetes mellitus, type II with erectile dysfunction. II. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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 (b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16 (a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In an October 2006 application for entitlement to TDIU, the Veteran contended that he worked as a correctional officer from 1976 until 2001, at which point his diabetes mellitus prevented him from securing or following any substantially gainful employment. The Veteran also reported that he completed four years of college and did not have any additional education and training. In an August 2017 application for unemployability, the Veteran stated that he continued to work until January 2003, at which point his diabetes and neuropathy of both upper and lower extremities prevented him from securing or following substantially gainful employment. The Veteran is service connected for migraines at a 50 percent rate from July 18, 2017; right lower extremity sciatic nerve peripheral neuropathy at a 20 percent rate from August 3, 2005; left lower extremity sciatic nerve peripheral neuropathy at a 20 percent rate from August 3, 2005; diabetes mellitus, type II with erectile dysfunction at a 10 percent rate from August 3, 2005 to March 23, 2006 and a 20 percent rate from March 24, 2006; right upper extremity median nerve peripheral neuropathy at a 10 percent rate from August 3, 2005; and left upper extremity median nerve peripheral neuropathy at a 10 percent rate from August 3, 2005. The Veteran’s combined rating for compensation purposes was 60 percent from August 3, 2005 to July 17, 2017 and 80 percent from July 18, 2007. Thus, as of July 18, 2017, the Veteran met the schedular criteria for TDIU. In a March 2006 VA examination, the Veteran reported that he stopped working as a correctional officer at a prison following an attack, which resulted in a back injury. In an October 2017 VA examination, the examiner noted that the Veteran’s diabetic peripheral neuropathy impacted his ability to work. Specifically, the examiner noted that the Veteran was a policeman and prison worker in the past and that he is now unable to stand, sit, and walk for no more than 20 minutes at a time. The examiner further noted that the Veteran lost his dexterity, stamina, and strength in his arms and legs, making him unable to find and secure a full-time regularly scheduled occupation compatible with his vocational training. In a February 2018 VA examination, the examiner noted that the Veteran’s diabetes did not impact his ability to work. The examiner also noted that the Veteran’s erectile dysfunction associated with his diabetes mellitus did not impact his ability to work. In a June 2018 private DBQ, the examiner noted that the Veteran’s diabetes mellitus did not impact his ability to work. After a thorough review and resolving all doubt in favor of the Veteran, the Board finds that the evidence, particularly that of the October 2017 VA examination report, supports the assignment of TDIU. Upon consideration of the record in its entirety, the Board finds that the Veteran’s service-connected peripheral neuropathy associated with his service-connected diabetes mellitus would have a substantial effect on his ability to maintain gainful employment. The Board finds the VA medical opinions to be competent and credible evidence, and the opinions are supported by the Veteran’s lay statements and VA treatment records. Accordingly, in light of the favorable VA medical opinion, reasonable doubt is resolved in favor of the Veteran at this time. The Board finds that the Veteran’s service-connected diabetic peripheral neuropathy precludes him from securing and maintaining substantially gainful employment, and entitlement to a TDIU is warranted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel