Citation Nr: 1815002 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-39 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a separate, compensable rating for erectile dysfunction. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty in the U. S. Army from August 1969 to August 1971, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a July 2008 rating decision, the RO denied an increased rating in excess of 20 percent for diabetes. In a March 2009 rating decision, the RO denied a separate, compensable rating for erectile dysfunction. Entitlement to a TDIU was denied in a July 2009 rating decision. The Veteran withdrew his request for a Board hearing in February 2016. 38 C.F.R. § 20.704(e) (2017). As such, there is no pending hearing request at this time. The Board notes that the Veteran is in receipt of a schedular 100 percent rating and special monthly compensation (SMC) beginning May 7, 2010; as such, the issue has been re-characterized as reflected on the title page. The issues on appeal were previously remanded by the Board in July 2016. At that time, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder (other than major depressive disorder), to include posttraumatic stress disorder (PTSD). Subsequently, the RO granted service connection for PTSD in an April 2017 rating decision. As such, that issue is no longer before the Board for consideration. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's diabetes mellitus disability has required oral medication, insulin, and a restricted diet, but has not required regulation of activities. 2. The Veteran has erectile dysfunction; neither the lay nor the medical evidence shows penile deformity during this appeal period. 3. Entitlement to a TDIU is moot for the rating period beginning May 7, 2010. 4. The Veteran's service-connected disabilities met the schedular criteria under 38 C.F.R. § 4.16 (a) for the rating period from August 21, 2007, to May 6, 2010. 5. For the period from August 21, 2007, to May 6, 2010, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire increased rating period on appeal, the criteria for a rating in excess of 20 percent for type II diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a separate, compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017). 3. For the periods from August 21, 2007 to May 6, 2010, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability Ratings-Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). As is the case here, 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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. See 38 C.F.R. § 4.7 (2017). Rating Analysis for Diabetes Mellitus and Erectile Dysfunction The Veteran seeks an increased disability rating for diabetes mellitus, type II, which is currently rated as 20 percent disabling under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is assigned a 20 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Diabetes mellitus 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 assigned a 60 percent disability rating. Diabetes mellitus 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 assigned a 100 percent disability rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board notes that "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id. Although not specified in the rating criteria, the Board finds that this definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under Diagnostic Code 7913. Additionally, the Board notes that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Based on the evidence of record, both lay and medical, the Board finds that an increased disability rating in excess of 20 percent has not been met for any period on appeal, as the competent medical evidence of record does not show that the Veteran's diabetes requires regulation of activities. The evidence includes a May 2008 VA examination. The Veteran was noted to be both on insulin and oral medication, but was not following a specific diet. In a June 2013 VA diabetes examination, the examiner indicated that the Veteran was managed by a restrictive diet, oral hypoglycemic agents, and insulin with more than 1 injection per day. The Veteran did not require regulation of activities as part of his management of diabetes. It was further indicated that the Veteran visited his diabetic care provider less than 2 times a month. He had no hospitalizations due to diabetes in the past 12 months. The examiner further noted that the Veteran had erectile dysfunction. A physical examination showed that the Veteran's penis and testes were normal. VA treatment records in November 2009 and November 2016 show that the Veteran's exercise tolerance was "okay." It was further indicated that the Veteran was on insulin and had no hypoglycemic spells. Diet and exercise were "reinforced." He was instructed to exercise aerobically for 20-30 minutes three times a week and was instructed to "increase" daily physical activity. Based on the evidence of record, both lay and medical, the Board finds that an increased disability rating in excess of 20 percent has not been met for any period on appeal, as the competent medical evidence of record does not show that the Veteran's diabetes requires regulation of activities. An evaluation of 40 percent under DC 7913 does not merely require evidence that the Veteran experiences limitations in his activities as a result of his diabetes, but that it is medically necessary for him to avoid strenuous occupational and recreational activities. See Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007); see also 38 C.F.R. § 4.119, DC 7913 (defining term within criteria for a 100 percent rating). For example, the Court in Camacho explained that an opinion from an employer that a Veteran should not drive was not based on an individualized assessment of the Veteran or constitutes competent medical evidence that the diabetes actually made it unsafe to drive. Camacho at 365. The Court noted that VA's intention in drafting the current version of the Diagnostic Code had been to ensure that the rating reflected how well diabetes had been controlled. Id. at 363. Further, the Court observed that the VA Clinician's Guide instructed examiners to "[i]nclude any restrictions of diet or physical activities and any weight loss." Id. at 364. Just as with restrictions in diet, the essential characteristic of regulation of activity under DC 7913 is medical instruction. In this case, the evidence of record does not show that the Veteran has been instructed to avoid strenuous activities; instead, has been instructed to exercise as tolerated, at least three times per week and it was recommended that he increase his daily physical activities. The Board finds that the instruction to exercise daily is not a "regulation of activities." The Veteran is competent to report his diabetes symptoms, as well as the measures he undertakes upon his own initiative to mitigate or control them. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, a showing that regulation of activities is medically necessary for control of diabetes requires medical evidence, not merely lay evidence. See Camacho at 363. In this case, medical evidence from treating physicians and VA examiners does not reflect that regulation of activities is medically necessary. For these reasons, the Board finds that the Veteran has not met all the criteria for a higher rating for his service-connected diabetes disability. The preponderance of the evidence is against the Veteran's claim for an increased disability rating in excess of 20 percent for diabetes mellitus type II for any period on appeal. There is no reasonable doubt to be resolved, therefore, the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has also considered whether separate, compensable ratings are warranted for any residuals associated with the Veteran's diabetes disability. Note (1) to Diagnostic Code 7913 instructs the rating board to separately rate compensable residuals of diabetes. 38 C.F.R. § 4.119, Diagnostic Code 7913. In a December 2004 rating decision, the RO granted service connection for diabetes mellitus with erectile dysfunction. The Veteran has already been granted SMC for loss of use of a creative organ. The Veteran maintains that a separate, compensable rating for erectile dysfunction is warranted. The Veteran's erectile dysfunction is properly evaluated under Diagnostic Code 7522. Diagnostic Code 7522 provides a 20 percent rating for a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A footnote to this diagnostic code indicates that claims for penis deformities should be reviewed for entitlement to SMC. See 38 U.S.C. §§ 1114 (k) (2012); 38 C.F.R. § 3.350 (k) (2017). SMC is payable for anatomical loss or loss of use of a creative organ. Id. Here, a compensable rating for erectile dysfunction is not warranted. Although the Veteran has loss of erectile power, neither the lay nor the medical evidence reflects penile deformity. In fact, the Veteran reported normal anatomy with no penile deformity or abnormality during the June 2013 VA examination. The remaining evidence of record does not show that the Veteran has a penile deformity. The Board finds that there is no other provision of the code that would afford the Veteran a compensable evaluation for his erectile dysfunction. Further, the Veteran has already been granted SMC for loss of use of a creative organ. Accordingly, the claim for entitlement to a compensable rating for erectile dysfunction is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102. Regarding other possible complications associated with the diabetes disability, the Veteran has already been awarded separate ratings for peripheral neuropathy of the bilateral upper and lower extremities. The Veteran has not expressed disagreement with the ratings or effective dates assigned for these benefits; as such, the Board will not address these issues at this time. TDIU As noted in the Introduction section above, the Veteran is in receipt of a schedular 100 percent rating and special monthly compensation beginning May 7, 2010; as such, the issue of a TDIU for the rating period beginning May 7, 2010 is moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran's claim for a TDIU prior to May 7, 2010 was denied by the RO, in part, because the Veteran did not return the formal TDIU application form, VA Form 21-8940. VA's Adjudication Manual provides that if the issue of is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of a TDIU based on the available evidence of record. See Adjudication Manual, IV.ii.2.F.2.b. It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful" employment is employment that is "ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See §§ 38 C.F.R. 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16 (a). Id. The Board finds that the Veteran met the schedular criteria for a TDIU as of August 21, 2007. Specifically, the Veteran was service connected for coronary artery disease, rated as 30 percent disabling; PTSD, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; surgical scar, rated as 10 percent disabling; and other noncompensable disability (hearing loss, fugal foot infection, and residual scars). Even though the Veteran met the threshold requirement for obtaining a schedular TDIU beginning August 21, 2007, the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The evidence includes a May 2008 VA diabetes examination where the Veteran reported that he retired in 1998 after 31 years at Caterpillar. He also indicated that he was a part-time farmer. The Veteran indicated that he retired as a result of his heart condition. In a February 2009 VA genitourinary examination report, it was again indicated that the Veteran retired in 1998 and was now was self-employed as a subsistence farmer. In an August 2010 VA PTSD examination, the Veteran reported that he retired in 1998 as he was eligible for retirement due to his age. VA treatment records include an August 2009 psychiatric note where the Veteran reported being retired, but also indicated that he farmed on his family's grain farm. See e. g., August 2009 treatment record. In a June 2008 record, the Veteran indicated that he had been busy "working on the farm." When considering both of the Veteran's service-connected disabilities for the relevant periods on appeal, the evidence of record suggests that his service-connected disabilities, at most, might have prevented him from performing strenuous physical labor (such as full-time farming). However, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from securing or following any type of substantially gainful employment. During the relevant appeal period, the Veteran indicated that he had retired in 1998 both due to his age and physical conditions. In a December 2009 statement, the Veteran reported that he stopped physically working on the farm in 2005; however, he continued to receive some income from the farm as he was helping to manage his family's farm. He indicated that he now hired outside workers to help maintain the farm. In light of the foregoing, the Board concludes that the most probative evidence of record weighs against a finding that the Veteran's service-connected disabilities prevented him from securing or following any substantially gainful employment from August 21, 2007, to May 7, 2010. Instead, the record indicates that at a minimum, the Veteran likely would have been able to perform sedentary work or light physical work (such as assisting in managing a farm or other nonphysical demanding job). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An increased rating in excess of 20 percent for diabetes mellitus is denied. A separate, compensable rating for erectile dysfunction is denied. A TDIU for the period from August 21, 2007, to May 7, 2010 is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs