Citation Nr: 18159282 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-12 063 DATE: December 19, 2018 ORDER Entitlement to service connection for diabetes mellitus is granted. Subject to the law and regulations governing payment of monetary benefits, an award of a TDIU is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his diabetes mellitus is proximately due to his service connected back disability. 2. The Veteran’s service-connected disabilities prevent him from obtaining or retaining substantially gainful employment consistent with his work and education history. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§3.102, 3.303, 3.310 (2017). 2. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the US Coast Guard from September 1973 to September 1977. The Veteran presented sworn testimony at a hearing before the undersigned in October 2018. Service Connection 1. Diabetes Mellitus The Veteran asserts entitlement to service connection for his currently diagnosed diabetes mellitus. Specifically, he claims that his diabetes mellitus is proximately due to or the result of a service-connected back disability. After a careful review of the evidence, the Board finds that service connection on a secondary basis is warranted. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the Veterans treatment notes, reveals that in March 2016, the Veteran’s endocrinologist at the VA noted that exercise is very limited for the Veteran due to the chronic pain from his service connected injuries and as a result his diabetes is very difficult to manage. The VA physician opined that both the development and severity of the Veteran’s diabetes mellitus is directly related to his service connected disabilities that have prevented him from remaining active. As further evidence to support his claim, the Veteran submitted an opinion from his private physician, Dr. J. L., dated June 2014. In this letter, Dr. J.L. states that based on the preponderance of the evidence supporting a positive association of exercise with both prevention and treatment of the Veteran’s type II diabetes, in his opinion it is more likely than not that both the development and the severity of type II diabetes, is directly related to the service connected disabilities that have prevented him from remaining active. Lastly, the Veteran submitted a statement from Dr. G.B. dated, June 2013. In this letter, Dr. G.B., indicates that he previously treated the Veteran for his diabetes mellitus disability and opined that if the Veteran’s back pain prevented him from exercising, then his back pain was a contributing factor to his diabetes mellitus. The Board notes that in February 2016 a VA examiner opined that the Veteran’s current diabetes mellitus is not related to his service connected back disability, but finds that such is inadequate as it lacks sufficient rationale. See CAVC, Memorandum Decision (February 2017) (finding that the June 2013 VA examiner’s opinions are inadequate). The Board finds that the VA physician’s opinion was over generalized and did not take into account this Veteran’s particular circumstance. As such, the Board is giving more weight to the three positive opinions provided in the Veteran’s record, and finds that service connection for diabetes mellitus, as secondary to the Veteran’s back disability is warranted. 2. TDIU The Veteran has applied for entitlement to a total disability rating based upon individual unemployability due to his service connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). After resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities prevent him from obtaining or retaining substantially gainful employment consistent with his work and education history. Initially, the Board finds that the Veteran’s combined disability rating exceeds the schedular requirements set forth in in 38 C.F.R. § 4.16 (a). The Veteran was last employed as a warehouseman for the Army Corp of Engineers in October 2008. See VA Form 21- 8940 (June 2013). The Board notes that the Veteran is service connected for a severe back disability as well as diabetes mellitus with complications. The Veteran has stated repeatedly that the combination of these two disabilities make it impossible for him to continue working. Additionally, as he has been unemployed since 2008, he could not now reenter the work force without competitive training. The Board also notes that he has been in receipt Social Security disability benefits since 2010 due to his service connected disabilities, specifically his back disability and his diabetes mellitus. For these reasons, the Board finds that the Veteran’s service-connected back disability and diabetes mellitus alone have been of sufficient severity to produce unemployability consistent with his education and employment experience. For these reasons, a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson