Citation Nr: 1808465 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 00-10 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 3. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II. 4. Entitlement to a total rating based on unemployability (TDIU) due to service-connected disabilities prior to November 5, 2010. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. He has been awarded a Combat Infantryman's Badge among his awards and decorations. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Huntington, West Virginia. The Veteran was afforded a personal hearing at the RO in October 2000 and before a Travel Board hearing before a Veteran's Law Judge in August 2001 and November 2008. The transcripts are of record. By decision in October 2004, the Board denied entitlement to service connection for a back disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2007, the Court vacated the October 2004 Board decision and remanded the matter to the Board for action in compliance with its Order. The Board remanded the claim of entitlement to service connection for a back disorder in November 2007. Since the Veterans Law Judge who conducted the 2001 hearing had retired from the Board, the Veteran was afforded a hearing in November 2008 before the undersigned Veterans Law Judge on the issue of entitlement to service connection for a back disorder. The transcript is of record. The case was remanded by Board decision in March 2009. The RO denied an evaluation in excess of 10 percent for service-connected diabetes mellitus type II, in February 2009. The Veteran appealed for a higher rating. During the pendency of the appeal, by rating decision in October 2009, the RO granted a 20 percent disability rating for diabetes mellitus type II, effective August 12, 2008. By decision in April 2010, the Board denied entitlement to service connection for a back disorder. The issue of entitlement to a higher rating for diabetes mellitus was remanded for further development. The Veteran appealed the denial of the claim of entitlement to service connection for a back disorder to the Court. In June 2011, the Court issued an Order that vacated and remanded the decision to the Board for compliance with its specified directives. An RO rating decision in October 2011 granted service connection for ischemic heart disease, status post myocardial infarction, and assigned a 10 percent disability evaluation effective June 23, 2005. The Veteran appealed for a higher rating and an earlier effective date. An evaluation of 100 percent was assigned for ischemic heart disease from October 25, 2009 to February 1, 2010. An evaluation of 10 percent was assigned from February 1, 2010. An evaluation of 30 percent was assigned for ischemic heart disease from September 22, 2010. In a December 2012 rating decision, the RO assigned staged ratings of 60 percent effective November 20, 2008, 30 percent from October 5, 2009, 100 percent from October 25, 2009, 30 percent from February 1, 2010, and 100 percent from November 5, 2010 for ischemic heart disease. By rating decision in October 2012, the RO declined to reopen the claim of entitlement to service connection for hypertension secondary to diabetes mellitus type II and the Veteran appealed. The Board remanded the issue of entitlement to service connection for a back disorder for additional development in May 2012. By decision in February 2014, the Board reopened the claim of entitlement to service connection for hypertension, granted an effective date of November 8, 2004 for service connection of ischemic heart disease, status post myocardial infarction, granted 60 percent ratings from October 5, 2009 to October 25, 2009 and from February 1, 2010 to November 5, 2010. The Board denied an initial rating in excess of 10 percent prior to November 20, 2008 for ischemic heart disease, and in excess of 60 percent from November 20, 2008 to October 5, 2009. These matters are no longer for appellate consideration. The Board remanded the issues of entitlement to service connection for a back disorder and hypertension, an increased rating for diabetes mellitus, and a total rating based on unemployability due to service-connected disability for further development. In September 2015, the Board again remanded the issues on appeal for additional evidentiary development. The appeal has since been returned to the Board for further consideration. The issue of entitlement to a total rating based on unemployability due to service-connected disabilities prior to November 5, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record shows that the Veteran has a back disorder that is at least as likely as not due to his active service. 2. The preponderance of the evidence shows that hypertension was not manifested during service; is not shown to be related to active service; was not manifested within a year of separation from service; and/or is not shown to be due to or made worse by a service-connected disability. 3. For the entire rating period on appeal, the Veteran's service-connected diabetes mellitus type II has not required insulin and regulation of activities (avoidance of strenuous occupational and recreational activities). CONCLUSIONS OF LAW 1. Resolving the benefit of doubt in favor of the Veteran, the criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for hypertension, to include as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Pursuant to the Board's September 2015 remand, the Agency of Original Jurisdiction (AOJ) retrieved outstanding and pertinent records and provided the Veteran with VA examinations and opinions which were responsive to the questions asked of the examiner. The AOJ later issued a supplemental statement of the case in May 2016. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's September 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles - Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. Cardiovascular-renal disease, including hypertension, is listed among these diseases. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Back disorder The Veteran seeks entitlement to service connection for a back disorder. Essentially, the Veteran contends that he injured his back performing activities such as lifting and carrying heavy loads and sleeping on the ground and on ammunition boxes, consistent with his combat service. The Board notes that the Veteran's service treatment records are silent as to any back pain except for his separation examination, where he stated that he had back problems. It appears that after service, the Veteran worked as a steel laborer and he did not disclose his back injury as it could have jeopardized his employment. The Board further notes that the Veteran has received both VA and private treatment for his back disorder. As discussed above, the Veteran's claim as to this issue has a lengthy procedural history, and several prior VA examinations were deemed inadequate by the Court. Therefore, they will not be addressed at this time. Instead, the Board's analysis will focus on the actions taken since its September 2015 remand and the evidence added to the Veteran's record since that time. Pursuant to the Board's September 2015 remand, the Veteran was afforded a VA examination with a neurologist in December 2015. Upon examination, the neurologist determined that the Veteran did not clearly and unmistakably have a chronic back disability prior to service. The neurologist found that the changes to the Veteran's back were degenerative and cumulative. He also stated that the degree to which military service can be associated with the Veteran's back disorder is unknowable. The Board observes that the VA examination was characterized as insufficient for rating purposes in a January 2016 deferred rating form. The Veteran underwent another VA examination in March 2016 with a staff physician, who was instructed to transcribe the December 2015 neurologist's notes into a DBQ template. The examiner ultimately opined that the Veteran did not have a diagnosed back disorder prior to service, and that his current back disorder was unrelated in any way to his active duty service. The examiner's opinion was based primarily on the fact that the Veteran did not have any documented or corroborated back injury in service and did not suffer from any symptoms of a back disorder during service. In support of his claim, the Veteran submitted an October 2017 examination report from his private physician, Dr. Miller, who identified himself as a Board certified orthopedic surgeon. Dr. Miller indicated that he had reviewed the entirety of the Veteran's electronic claims file and provided a thorough summary and analysis of the Veteran's medical history, including all prior VA examinations and opinions as well as an interview with the Veteran. Dr. Miller noted that the Veteran's onset of symptoms pertaining to a back disorder were predicated by "repetitive sleeping on metal ammo boxes or the ground, as well as the lifting/carrying of [heavy equipment]." Dr. Miller first determined that the Veteran did not have a pre-existing back disorder. He also opined that "it is at least as likely as not that [the Veteran's] present thoracolumbar condition is the direct result of the repetitive injuries to [his] thoracolumbar spine during the last 11-11.5 months that he was on active duty while deployed to Vietnam." Dr. Miller explained that the prior examiners had based their negative opinions on the lack of a documented back injury during service and instead pointed to the Veteran's work as a steel laborer as the likely cause of his back disorder. Dr. Miller also noted that the prior VA examiners were only physicians and were not specialists in the field of orthopedics. After carefully considering the Veteran's contentions and reviewing the evidence of record, the Board finds that the probative evidence is in equipoise, and thus supports the grant of service connection for a back disorder with consideration of the doctrine of reasonable doubt. When evaluating medical opinions it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Here, the Board places some probative value on the October 2017 private report from Dr. Miller, as he indicated a complete review of the Veteran's electronic claims file and provided a thorough summary of the Veteran's treatment history. While the previous examiners determined that the Veteran's back disorder is not attributable to service, their rationales were less probative because they only considered the lack of a documented injury in service and did not consider the Veteran's credible lay statements that he injured his back while sleeping on hard surfaces and lifting heavy material in service. Further, Dr. Miller indicated that he is a Board certified orthopedic surgeon, and the prior VA examiners were not specialists. Therefore, the prior VA opinions are outweighed by the comprehensive analysis and summary performed by Dr. Miller and his corresponding positive nexus opinion. Pursuant to the benefit-of-the-doubt rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Here, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's back disorder was incurred in service. As such, the criteria for service connection are met and the claim is granted. Hypertension The Veteran seeks entitlement to service connection for hypertension, to include as secondary to a service-connected disability. As discussed in the Introduction section, the Board reopened this claim in February 2014. Initially, the Board notes that the Veteran's service treatment records are silent as to any complaints of hypertension or other cardiovascular condition. The Board further notes that the Veteran has received ongoing post-service treatment for hypertension, including prescription medication. Pursuant to the Board's February 2014 remand, the Veteran was afforded a VA examination for hypertension in June 2014. After a review of the Veteran's electronic claims file, the examiner reported that the Veteran's hypertension onset in the mid-to-late 1980s. The examiner determined that the Veteran's hypertension is less likely than not due to service nor caused by or aggravated by a service-connected disability. The examiner provided the following rationale: The Veteran has had documented hypertension since 1987. His diabetes mellitus was not diagnosed until 14 years later in 2001 and therefore his hypertension cannot be caused by his diabetes mellitus. As to whether his hypertension has been permanently aggravated by his diabetes mellitus two factors militate strongly against that. First for diabetes mellitus to aggravate hypertension diabetic nephropathy would almost certainly have to be present. This Veteran however has never had any evidence of diabetic nephropathy in that proteinuria has been absent (including microalbuminuria) and renal function has always been normal with the most recent serum creatinine being 1.1 in March 2014. Secondly a review of his blood pressure readings since 1999 shows essentially no difference in the blood pressures before and after his diabetes was diagnosed. No progression of hypertension can be detected. As to the issue of whether his PTSD caused or aggravated his hypertension, the medical literature does not support the hypothesis that PTSD can cause chronic hypertension although transient elevations of blood pressure lasting hours to days can occur during periods of excessive stress. Likewise there is no evidence supporting PTSD as a chronic aggravating factor that would result in acceleration of one's hypertension on a chronic basis rather than merely transient. I concur with the VA examiner's opinion in July 2012 which stated that the Veteran's hypertension was not aggravated by his service-connected PTSD. There were no further remarks. Given the above, the Board determines that the preponderance of the evidence shows that the Veteran's hypertension was not incurred in or aggravated by service nor was it caused or aggravated by his service-connected disabilities. The Board finds the reasoning of the June 2014 VA examiner highly probative as the examiner indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran's medical history. Here, the June 2014 examiner determined that the Veteran's symptoms did not onset in service or manifest until approximately 1987, which is well over the one year presumptive period prescribed by 38 C.F.R. §§ 3.307 and 3.309. The examiner also determined that the Veteran's hypertension was not caused by or permanently aggravated by his service-connected diabetes mellitus type II because the hypertension onset before diabetes, which was later diagnosed in 2001. Further, the examiner commented that hypertension was not permanently aggravated by diabetes because the Veteran does not suffer from diabetic nephropathy and his blood pressure readings have remained unchanged since he was diagnosed with diabetes. Finally, the examiner also explained that medical literature does not support the hypothesis that PTSD can cause or aggravate chronic hypertension. In sum, the most probative evidence of record is against showing that the Veteran's hypertension is related to service or his service-connected disabilities. In making this decision the Board notes that the Veteran is competent to report his hypertension and the circumstances surrounding such. The Board also acknowledges the lay evidence asserting that the Veteran's hypertension started while in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Likewise, at no time has a trained medical professional opined that the Veteran's hypertension is etiologically related to service or a service-connected disability. For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Legal Principles - Increased Evaluations 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Diabetes mellitus type II Diabetes mellitus is rated pursuant to Diagnostic Code 7913, 38 C.F.R. § 4.119. In this case, the RO rated the Veteran's diabetes mellitus as 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran asserts that a higher evaluation is warranted. Under Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires 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. A 100 percent rating is warranted when the diabetes requires 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. Id. 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, see 38 C.F.R. §§ 4.7, 4.21 (2017), those regulations do not apply where the rating schedule establishes successive criteria. The criteria for 60 and 100 percent ratings require "regulation of activities." See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The Board notes that the Veteran has received some VA and private treatment for his condition. The Veteran was afforded a VA examination for diabetes in March 2009. The Veteran reported that he treated his diabetes with diet and medication. The examiner noted that the Veteran's blood sugar was well controlled. The Veteran did not report any symptoms of a peripheral vascular disease, cardiac disease, visual disorders, neurovascular disease, peripheral neuropathy, diabetic nephropathy, skin disorders, gastrointestinal disorders, and genitourinary disorders. Also, an eye examination showed no diabetic retinopathy. The Veteran otherwise had no additional complaints concerning his diabetes mellitus type II. The examiner reported that the Veteran is not restricted in performing strenuous activities. The Veteran underwent another VA examination for diabetes in June 2014. Upon examination, the examiner reported that the Veteran is prescribed oral hypoglycemic agents for his diabetes mellitus type II, but the Veteran does not require regulation of activities to manage his condition. The examiner reported that there were no other complications related to the Veteran's diabetes mellitus type II. Pursuant to the Board's September 2015 remand, additional treatment records were obtained. A review of these records shows that current treatment consists of restricted diet and oral medication. There is no evidence that the Veteran is restricted in his ability to perform activities due to diabetes. Additionally, there are no reported episodes of hypoglycemia in recent years. In other words, it appears that the Veteran's diabetes mellitus type II is under control. To summarize, there is no medical evidence indicating that a medical provider advised the Veteran to restrict his activities in any way for the purpose of treating his diabetes and he does not use insulin. Most recently, the June 2014 VA examiner noted that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus. The Board observes that while it appears that the Veteran suffers from a number of other health issues, at no time has a medical professional found that the Veteran must restrict his activities solely because of his diabetes mellitus type II. Based on a careful review of all of the evidence, the Board finds that the Veteran's diabetes mellitus type II does not warrant a 40 percent evaluation. The Veteran uses oral hypoglycemic agents and has a restricted diet, but does not require regulation of his activities due to his diabetes. Although the Veteran takes numerous medications, the rating criteria does not provide for higher evaluations based on the number of medications. Rather, the rating criteria require that the Veteran's activity have restrictions as a result of his diabetes to consider a higher evaluation. Here, the evidence does not demonstrate that the Veteran's diabetes mellitus has reached the level of severity necessary for a 40 percent evaluation. Therefore, the Board finds that the Veteran's diabetes mellitus type II is no more than 20 percent disabling. Further, no separately ratable vision impairment or other condition has been clinically established that would warrant a compensable rating. In sum, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for diabetes mellitus type II. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher evaluation, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a back disorder is granted. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability is denied. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus type II is denied. REMAND The Veteran seeks entitlement to a total rating based on unemployability (TDIU) due to service-connected disabilities prior to November 5, 2010. The Board finds that the claim of entitlement to a TDIU prior to November 5, 2010 claim is inextricably intertwined with the grant of entitlement to service connection for a back disorder discussed above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In other words, the Veteran's back disorder needs to be assigned evaluation(s), and effective date(s) throughout the period on appeal. Remand of the earlier effective date for a TDIU is therefore required, pending the actions taken on the award of entitlement to service connection for a back disorder. Accordingly, the case is REMANDED for the following action: After implementation of the Board's decision to grant entitlement to service connection for a back disorder and evaluation of the totality of the Veteran's back disorder subsequent to that implementation, and following any additional indicated development, the AOJ should review the electronic claims file and readjudicate the Veteran's claim of entitlement to a TDIU prior to November 5, 2010. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs