Citation Nr: 18149140 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-31 493A DATE: November 8, 2018 ORDER A compensable disability rating for bilateral diabetic retinopathy is denied. An increased disability rating for renal insufficiency with hypertension is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The appeal for entitlement to service connection for prostatitis is remanded. The appeal for entitlement to service connection for skin problems to include skin cancers, is remanded. FINDINGS OF FACT 1. The Veteran’s corrected visual acuity has been within normal limits throughout the appeal period, he does not have visual field defects, or muscle function impairment, and he has had no incapacitating episodes related to his eyes during the appeal period. 2. The Veteran’s diabetes-related renal insufficiency is not manifested by persistent edema and albuminuria with BUN 40 to 80 mg percent, or creatinine 4 to 8 mg percent, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 3. The Veteran’s service-connected diabetes-related disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.76, 4.77, 4.78, 4.79, 4.199, Diagnostic Codes 6008, 7913. 2. The criteria for a disability rating greater than 60 percent for diabetes-related renal insufficiency have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, Diagnostic Code 7541. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to March 1967. He was awarded the Vietnam Campaign Medal with 60 device and the Bronze Star Medal. In May 2018, the Veteran provided sworn testimony regarding his appeal during a videoconference hearing before the undersigned Veterans Law Judge. Subsequent to the hearing, he submitted additional private medical records, and requested that VA obtain updated treatment records as well. He has waived initial RO consideration of this new evidence. Increased Ratings Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, VA must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Because this appeal has been ongoing for a lengthy period of time, and because the level of a Veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (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). When assessing the present level of disability for the period on appeal, staged ratings are appropriate when the facts show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received, if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C. § 5110; see also Hart, 21 Vet. App. at 509. 1. Bilateral diabetic retinopathy Service connection for diabetes mellitus associated with herbicide exposure in Vietnam was granted in July 2007. The Veteran subsequently developed diabetic retinopathy in both eyes. Diabetic retinopathy was added to his compensation award effective in August 2011. The Veteran asserts a higher disability rating is warranted. Diabetic retinopathy is considered part of the diabetic process. The rating criteria for diabetes mellitus provide that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R § 4.119, Diagnostic Code 7913. Therefore, unless the Veteran’s retinopathy is shown to be compensable, it is considered to be part of the diabetic process under Diagnostic Code 7913. The regulatory rating schedule provides that retinopathy is evaluated on the basis of either visual impairment or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79, Diagnostic Code 6006. The evaluation of visual impairment is based on impairment of visual acuity excluding developmental errors of refraction, visual field, and muscle function. Central visual acuity is measured on the basis of corrected distance vision. 38 C.F.R. §§ 4.75, 4.76. Evaluation of visual fields and muscle function is described in 38 C.F.R. §§ 4.77 and 4.78. An incapacitating episode is defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79. The Veteran receives regular ophthalmological care. Review of the Veteran’s ophthalmological records and multiple VA examinations during the appeal period reveals that his corrected visual acuity has been within normal limits throughout. The 2015 VA examination indicated that the Veteran did not have visual field defects, muscle function impairment, or any incapacitating episodes involving his eyes. According to the report, his diabetic retinopathy is mild in both eyes without any effects on his vision. The Veteran’s corrected vision was 20/20 or 20/40. Thus, under any of the potential rating criteria, the Veteran’s diabetic retinopathy warrants a noncompensable disability rating. 38 C.F.R. §§ 4.75, 4.76, 4.77, 4.78, 4.79. As such it must continue to be considered a noncompensable complication and part of the diabetic process under Diagnostic Code 7913. The medical evidence of record shows that in addition to retinopathy, the Veteran has developed mild diabetes-related cataracts, or nuclear scleroses, in both eyes. It appears that the cataracts should be considered part of the diabetic process as the claims file currently contains several medical opinions to that effect. At this point in time, it appears his cataracts appear to be noncompensable under the VA Rating Schedule, so not considering the cataracts in this evaluation does not impact his current disability rating. 2. Renal insufficiency with hypertension Service connection for chronic renal insufficiency as secondary to diabetes mellitus was granted in July 2007. A 60 percent disability rating was assigned at that time and has been in effect since. It appears that hypertension was added to the rating in March 2013, with no explanation for the addition. Separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, due to the close interrelationships of cardiovascular disabilities. 38 C.F.R. § 4.115. Where absence of a kidney is the sole renal disability, or where a chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. 38 C.F.R. § 4.115. In this case, the evidence of record does not demonstrate either absence of a kidney or that regular dialysis has been required. Accordingly, granting separate ratings for the Veteran’s renal dysfunction and hypertension is prohibited under law, and the RO has properly characterized the disability as involving renal insufficiency and hypertension. 38 C.F.R. § 4.115; 38 C.F.R. § 4.14. Renal involvement in diabetes mellitus is rated based upon the resulting renal dysfunction. 38 C.F.R. § 4.115a, Diagnostic Code 7541. Under the criteria for rating renal dysfunction, the currently-assigned 60 percent rating is warranted where there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg percent, or creatinine 4 to 8 mg percent, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent disability rating is assigned for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or, BUN more than 80 mg percent, or creatinine more than 8 mg percent, or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. The Board observes that these various criteria are not inclusive as they are linked by “or” rather than “and.” Thus, the Veteran would have to show either persistent edema and albuminuria with BUN 40 to 80 mg percent, or, creatinine 4 to 8 mg percent, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion to warrant the assignment of an 80 percent disability rating. 38 C.F.R. § 4.115a. Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). The relevant records in the record include private medical records, VA medical records, and a 2015 VA examination. Turning first to the Veteran’s BUN measurements over the years, his VA records contain regular blood test reports including BUN. However, at no point during the appeal period did his BUN readings approach a reading of 40 mg/DL. His BUN readings between 2011 and 2018 range from 14 mg/DL to 23 mg/DL. His albumin levels appear to have been high throughout. We note that the presence of bilateral edema is reflected in his medical records throughout the appeal period. However, an 80 percent rating requires persistent edema and albuminuria with BUN readings at 40 to 80. Therefore, persistent edema alone cannot support a higher rating under Diagnostic Code 7541. Next, the Veteran’s creatinine readings during the appeal period ranged from 1.7 mg/DL to 1.9 mg/DL. These readings are well below the 4 to 8 readings required for an 80 percent disability rating under Diagnostic Code 7541. Furthermore, the last two criteria are generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Upon careful review, the Board finds that these elements are not shown in his medical records, his written statements, or his hearing testimony. He wrote that he is tired after mowing his lawn with a riding mower. He credibly testified at the 2018 Board hearing that he is frequently tired and rests between activities. He also testified, however, that he is able to conduct activities such as cooking his own meals. His medical records do not reflect weakness, anorexia, or weight loss, and there is no indication that his physicians have ordered him to limit his exertion. Accordingly, an 80 percent evaluation is not for assignment. A disability rating of 100 percent is also not warranted, as the Veteran does not require regular dialysis or meet any of the other criteria for the 100 percent rating. Therefore, upon review of all the evidence, the Board determines that an increased evaluation is not warranted. The 60 percent rating is recognition of severe kidney disease; the severity of which is confirmed in his medical records, blood test reports, and urine test reports. The preponderance of the evidence is against a disability rating greater than 60 percent for renal insufficiency with hypertension due to diabetes mellitus. 3. TDIU The Veteran contends that he is entitled to a TDIU. He asserts he is precluded from working due to the severity of his service-connected disabilities. He credibly reports that he retired from his employment as a dairy inspector when his diabetes and renal impairment worsened. A TDIU may be assigned where 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 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, 3.34l, 4.16(a). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. The Veteran’s employment history, educational and vocational attainment, as well as his individual physical disabilities are to be considered in making a determination on unemployability. It is further provided that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently in receipt of a combined 70 percent disability rating; consisting of 60 percent for renal insufficiency with hypertension; 20 percent for diabetes mellitus, which rating encompasses his retinopathy, cataracts, and erectile dysfunction; 10 percent for peripheral neuropathy of the right leg, and 10 percent for peripheral neuropathy of the left leg. He additionally receives special monthly compensation. As such he meets the schedular criteria set forth in 38 C.F.R. § 4.16. In the Veteran’s 2011 claim, he reported that he had attended four years of college as well as numerous on-the-job training courses prior to his retirement. His VA educational records confirm that he obtained a Bachelor’s of Science Degree following his discharge from service. He reports that he had retired in 2008 because his blood sugar was getting increasingly hard to control and he could not stay on his feet long enough to effectively perform his job as a dairy inspector. A statement from his former employer reflects that he retired from his position as a Senior Environmental Health Specialist in September 2008. Review of the Veteran’s medical records around the time of his retirement reflects that his diabetes was frequently described as “uncontrolled.” As noted above, he continues to receive regular medical care for his diabetes, hypertension, retinopathy, cataracts, and renal dysfunction. This supports the Veteran’s statement that he retired due to difficulty controlling his blood sugars. Upon careful review, the Board finds that the Veteran is rendered unemployable by his service-connected disabilities. To the extent there may be any remaining doubt, such doubt must be resolved in favor of the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A total disability rating based upon unemployability is therefore granted. REASONS FOR REMAND The service connection claims on appeal required remand for VA medical opinions or examinations. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). 1. Prostatitis The Veteran asserts he is being closely monitored for prostate cancer, and that his PSA tests are all over the place. The Veteran’s service personnel records indicate service in Vietnam. Additionally, his records reflect a diagnosis of prostatitis and of a nodular prostate. However, the most recent urological treatment records contained in the claims file are dated in 2014. After obtaining these records, an informed medical opinion as to whether the Veteran’s variable PSA results represent prostate cancer and whether his prostatitis/nodular prostate is more, less, or equally likely to be related to service in any way, or to exposure to herbicides in Vietnam, is needed. 2. Skin problems, to include skin cancer The Veteran has complained of itching which is worse in cold weather, and also of sun-related skin cancers. His medical records reflect the removal of several actinic keratoses. A 2014 record shows he was referred to a “Dr. Polly with dermatology” for the removal of cancerous boils. However, records reflecting Dr. Polly’s treatment have not been obtained. During the 2018 Board hearing, the Veteran testified that his doctors had told him his skin cancers were due to sun exposure early in life. He further testified that he did not use sunscreen when he was in Vietnam, and did not have significant sun exposure after Vietnam. In his post-service life he stated he used sunscreen, hats and sun-protective clothing. Therefore, after obtaining outstanding dermatological records, a medical opinion regarding the likelihood that the Veteran’s inservice sun exposure caused the recently-shown skin growths should be obtained. Depending upon the exact nature of the Veteran’s skin cancers, it may be necessary to obtain an opinion as to whether herbicide exposure in Vietnam caused or contributed to the development of skin cancer. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include Dr. Polly and all dermatological and urological treatment. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an opinion regarding the nature and etiology of the Veteran’s prostate complaints from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner should specifically identify whether the Veteran’s PSA results or anything else in the medical evidence indicates a diagnosis of prostate cancer at any stage. Second, the examiner should identify whether these are at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure during service; or whether either is at least as likely as not (1) proximately due to the Veteran’s service-connected diabetes mellitus or renal insufficiency, or (2) aggravated beyond its natural progression by a service-connected disability. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any skin disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must identify all skin disorders present since 2010. Second, for each currently diagnosed skin disorder, opine whether each is at least as likely as not related to an in-service injury, event, or disease, including sun exposure occurring between July 1963 and March 1967, or herbicide exposure in Vietnam. Third, for each currently diagnosed skin disorder, opine whether each is at least as likely as not caused or aggravated by the Veteran’s service-connected diabetes mellitus or renal insufficiency. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter