Citation Nr: 1815458 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-28 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus (DM). 2. Entitlement to a total rating based on unemployability (TDIU) due to service-connected disability. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Arooj Sami, Associate Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In connection with this appeal, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. During the Board hearing, the Veteran expressed his wish to limit the appeal to a 40 percent increased rating in order to expedite the appeals process. Accordingly, the Board has evaluated the Veteran's claim for diabetes mellitus up to the 40 percent rating. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). As explained below, the Board has expanded the appeal to include the matter of entitlement to a TDIU for diabetes mellitus. That issue is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire period on appeal, the Veteran's DM required treatment with insulin, a restricted diet, and the regulation of activities. CONCLUSION OF LAW The criteria for an initial rating of 40 percent, but not higher, for DM have been met for the entire period on appeal. 38 U.S.C. 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he is entitled to a higher rating for his DM as his symptoms are worse than those contemplated by the currently assigned rating. Specifically, the Veteran has reported that his DM care provider has prescribed regulation of activities. In support of his claim, the Veteran submitted letters by his endocrinologist Dr. C.R. who has treated him since 2008. In a letter dated August 2014, Dr. C.R. stated that the Veteran's prescribed DM treatment consisted of insulin and oral hypoglycemic agents, a restricted diet, and avoidance of strenuous activities with the intention of avoiding hypoglycemic episodes. In November 2017, the endocrinologist specified that the Veteran's requirement to regulate activities was determined on June 22, 2011. The Board has reviewed all evidence of record pertaining to the Veteran's history of DM and finds that the evidence is not inconsistent with the treating physician's prescription of avoiding strenuous activities. The medical record contains notations that the Veteran is only allowed to engage in low to moderate exercise. Therefore, the Board finds that the Veteran is entitled to an initial 40 percent rating for his DM for the entire period on appeal. In this regard, the record shows that his DM is treated with insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). As noted above, at his October 2017 Board hearing, the Veteran specifically limited his appeal to a 40 percent rating for DM. As the Board has granted a 40 percent rating for DM, this appeal has been granted in full. ORDER Entitlement to an initial rating of 40 percent, but not higher, for DM for the entire period on appeal is granted. REMAND At the Board hearing, the Veteran raised a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran stated that fatigue and lack of focus, due to his diabetes, were impairments in his employment. When determining eligibility for a TDIU, the determinative issue is whether a veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. On this point, the Board finds that further development is needed before evaluating the Veteran's claim to a TDIU due to service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Conduct all appropriate development for the claim of entitlement to a TDIU. 2. Once all appropriate development has been conducted, adjudicate the issue of entitlement to a TDIU. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case 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. ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs