Citation Nr: 1808122	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-206 14A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to an increased rating for diabetes mellitus, to include the propriety of the reduction of diabetes mellitus from 40 percent disabling to 20 percent disabling, effective March 26, 2013.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1967 to September 1970.  

This case comes before the Board of Veterans' Appeals (the Board) from an October 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in April 2017.  A transcript of that proceeding has been associated with the claims file.

The Board notes that the Veteran has filed claims during the pendency of this appeal that have since been adjudicated. As the Veteran has not expressed any disagreement with said decisions, the above captioned matters are the only issues in appellate status.  


FINDINGS OF FACT

1. An October 2013 rating decision reduced the 40 percent disability rating assigned for diabetes mellitus to 20 percent, effective March 26, 2013.

2. Sustained improvement of the Veteran's service-connected diabetes mellitus has not been shown.

3. The Veteran's diabetes mellitus is manifested by need for insulin, restricted diet and regulation of activities with compensable and noncompensable manifestations; but does not require once or twice a year hospitalization for hypoglycemic reactions or ketoacidosis, nor have hypoglycemic reactions or ketoacidosis required twice a month visits to a diabetic care provider.

4. The Veteran is currently service-connected for diabetes mellitus with onychomycosis, diabetic dermopathy, and impotence, evaluated as 20 percent from March 2013;  peripheral neuropathy of each lower extremity, each evaluated at 20 percent from December 2016; peripheral neuropathy of each upper extremity, each evaluated at 20 percent from January 2013; adjustment disorder with mixed anxiety and depressed mood, evaluated at 30 percent from September 2015; bladder dysfunction, evaluated at 20 percent from January 2013; and hypertension, evaluated at 10 percent from July 2001. His combined schedular rating is 90 percent disabling, which satisfies the schedular criteria for individual unemployability.

5. The evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment.



CONCLUSIONS OF LAW

1. The reduction of the disability evaluation from 40 percent to 20 percent effective March 26, 2013 for diabetes mellitus was improper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2017).

2. For the entire period on appeal, the criteria for an evaluation in excess of 40 percent for diabetes mellitus are not met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.344, 4.1, 4.3, 4.7, 4.21, 4.119 Diagnostic Code 7913 (2017).

3. The criteria for TDIU have been met. 38 U.S.C. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Assist and Notify

In light of the fully favorable decision herein no discussion of VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

II. Rating Reductions and Increased Rating

The Veteran was originally granted service connection for diabetes mellitus in a July 2002 rating decision.

An October 2013 rating decision reduced the Veteran's diabetes mellitus rating from 40 to 20 percent, effective from March 26, 2013.  The Veteran appealed the decision, and asserts the reduction was improper and that the condition has undergone no improvement.


The RO did not issue the Veteran a rating decision proposing the diabetes mellitus reduction.  See 38 C.F.R. § 3.105(e) (2017).  However such notice is not required with respect to that matter.  Where a reduced rating would not result in a decrease or discontinuance of the current compensation payments, there are no procedural requirements.  VAOPGCPREC 71-91 (Nov. 1991).  The reduction of the Veteran's diabetes mellitus did not reduce the Veteran's overall disability rate; thus, the lack of notice prior to the reduction, as typically required by 38 C.F.R. § 3.105(e) (2017), does not void the reduction.  See VAOPGCPREC 71-91 (Nov. 1991).

In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions, including those which have been in effect for less than five years.  Id. at 417.  The Court has held that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  See Brown, 5 Vet. App. at 420-421.  A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim.  Brown, 5 Vet. App. at 421.

The inquiry before the Board is whether the reduction was proper.  For the following reasons, the Board finds that the reduction of the Veteran's diabetes mellitus was improper.

The Veteran's diabetes mellitus is currently rated under Diagnostic Code 7913. A rating for 20 percent requires daily injections of insulin and a restricted diet, while a rating for 40 percent requires insulin, restricted diet, and regulation of activities. 

Relevant to this appeal, the criteria for rating diabetes are "successive." 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, 21 Vet. App. at 363. Medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words 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.   Although VA regulations 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. See 38 C.F.R. §§ 4.7, 4.21.

The Veteran's diabetes mellitus was rated at 40 percent by way of a September 2009 rating decision. The Veteran underwent a VA Examination in July 2009. During the examination, the Veteran reported that he lacked the ability to do many activities due to fatigue and difficulty walking or standing for prolonged periods. At the time of the examination, the Veteran reported using insulin 4 times per day. The examiner stated that the effect of the condition on the Veteran's usual occupation and daily activity was severe, and that the Veteran should avoid strenuous activity. 

The reduced rating for diabetes mellitus is based on a March 2013 VA Examination. The examiner noted the Veteran's insulin use and restricted diet, but indicated that the Veteran did not require regulation of activities as part of medical management for his diabetes mellitus. The examiner provided no further opinion or rationale concerning regulation of the Veteran's activity. Based on this finding, the Veteran's rating was decreased from 40 to 20 percent.

The Veteran also underwent a June 2017 VA examination in conjunction with the instant appeal. The Veteran reported that pain in his arms and legs had become worse. He also reported a loss of grip and strength in his hands, and using the assistance of a cane to help with the lack of sensation in his feet and weakness in his legs. The examiner noted the Veteran's insulin use, restricted diet, and further noted that the Veteran required regulation of activities as part of medical management of his diabetes mellitus.

Considering both the lay and medical evidence of record, the Board finds that sustained improvement of the Veteran's service-connected diabetes mellitus has not been shown. First, the Board notes that the March 2013 examiner provided no evidence to substantiate the finding that no regulation of activities was required. As such, the report is found to contain no probative evidence indicating that the Veteran's diabetes mellitus does not require such regulation. The Board also notes that since the June 2009 examination, the Veteran reports worsening pain, loss of grip in his hands, and the use of a cane to walk. Further, at the time of the July 2009 examination, the Veteran reported taking 4 insulin shots per day. The evidence of record shows that the Veteran now requires 5 insulin shots per day to manage his diabetes. See April 2017 Hearing Transcript at page 7. Lastly, the most recent examination in July 2017 shows that the Veteran's activities must be regulated as part of medical management of his diabetes mellitus; the only remaining requirement in question for a 40 percent rating under Diagnostic Code 7913.

Accordingly, as an improvement in the Veteran's diabetes mellitus has not been shown by the evidence of record, the Board finds that the reduction of the Veteran's diabetes mellitus from 40 percent to 20 percent was improper, and the prior rating must be restored for the entire period on appeal. 

Turning to the Veteran's claim for an increased rating in excess of 40 percent, the Board finds that such an increase is not warranted. A 60 percent evaluation is assigned where the disease requires insulin, a 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. 38 C.F.R. § 4.119, Diagnostic Code 7913.

In this case, a diabetes mellitus questionnaire submitted in June 2017 and the March 2013 VA examination both indicate that the Veteran has not experienced ketoacidosis or hypoglycemic reactions requiring hospitalization in the past 12 months.  

Although the Veteran does meet some of the requirements necessary for a 60 percent disability rating for his diabetes mellitus, he does not meet them all. As previously mentioned, the criteria for rating diabetes mellitus is successive, meaning that if a component is not met at any one level, the Veteran may only be rated at the level not requiring that component. In the instant case, the Veteran does not meet the requirement regarding ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Thus, a schedular rating higher than 40 percent is therefore not warranted. 38 C.F.R. § 4.119, DC 7913.

III. TDIU

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). 

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218   (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one. Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86   (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

In this case, the Veteran has advanced being unable to secure (obtain) or maintain (follow) substantially gainful employment due to service-connected disabilities. After a review of all the evidence, lay and medical, the Board finds that entitlement to TDIU is warranted.

The Veteran is currently service-connected for diabetes mellitus with onychomycosis, diabetic dermopathy, and impotence, peripheral neuropathy of each lower extremity, peripheral neuropathy of each upper extremity, adjustment disorder with mixed anxiety and depressed mood, bladder dysfunction, and hypertension. His combined schedular rating is 90 percent disabling, which satisfies the schedular criteria for individual unemployability.

The medical evidence of record shows that the August 2009 examiner opined that that the Veteran should avoid strenuous activity. Additionally, the March 2013 examiner indicated that the Veteran would only be able to perform sedentary employment. 
 
The Veteran also submitted an April 2017 correspondence and medical opinion from a private provider. The correspondence indicated that the Veteran had been treated by the examiner for his service-connected psychiatric disorder. The examiner opined that the Veteran's severe mood swings, anger with irritability, anhedonia, avolition, generalized anxiety, fatigue, chronic insomnia, and delusions make it impossible for the Veteran to function normally in a professional or social setting. 

The lay evidence of record also supports the Veterans claim for TDIU. The Veteran and his wife testified in a video conference hearing in April 2017. The Board notes both the Veteran and his wife's testimony that the Veteran  requires five insulin shots per day, that he is losing feeling in his hands and is unable to grip objects, that he is unable to walk more than 50 to 60 feet, and the effect of the Veteran's service-connected bladder dysfunction causing frequent trips to the bathroom. Additionally, the lay evidence indicates that the Veteran employs the assistance of a cane and a chair lift as a result of his service-connected lower extremity neuropathy. The Veteran and his wife ultimately contend that due to the aforementioned conditions, the Veteran could not meet the requirements of any employer. 

Based on all the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran is precluded from securing and following substantially gainful employment due to the effects of his service-connected disabilities, specifically his diabetes mellitus, adjustment disorder with mixed anxiety and depressed mood, bilateral peripheral neuropathy, and bladder dysfunction. Therefore, the Board concludes that TDIU is warranted. 



ORDER

The reduction of the rating from 40 percent to 20 percent for diabetes mellitus effective March 26, 2013 was improper, and restoration of a 40 percent rating is granted for the entire period on appeal.

For the entire period on appeal, a rating in excess of 40 percent for diabetes mellitus is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs