Citation Nr: 18126696 Decision Date: 08/15/18 Archive Date: 08/15/18 DOCKET NO. 15-33 272 DATE: August 15, 2018 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an effective date of April 22, 2011, but no earlier, for the establishment of service connection for diabetes mellitus is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REFERRED The issues of entitlement to service connection for peripheral neuropathy and a skin condition secondary to diabetes mellitus were raised in the Veteran’s April 2015 compensation and pension examination and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran’s hepatitis C was not incurred in the line of duty. 2. For the period on appeal, the Veteran’s diabetes mellitus has manifested to a degree requiring a restricted diet and use of an oral hypoglycemic agent, but has not required the use of insulin. 3. The April 2012 rating decision, with respect to the denied issue of entitlement to service connection for diabetes mellitus, was not final as notice of a disagreement with the denial was submitted within one year. 4. The earliest date for which a diagnosis of diabetes can be established by the evidence of record is April 22, 2011. 5. The Veteran’s service-connected disabilities result in the inability to obtain and sustain substantially gainful employment. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.301, 3.303, 3.304. 2. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1 -4.14, 4.119, Diagnostic Code 7913. 3. The criteria for entitlement to an effective date of April 22, 2011, for the grant of service connection for diabetes mellitus, have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.A. § 1011, 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions in April 2012 and September 2012 from the Department of Veterans Affairs (VA) regional office (RO) in Detroit, Michigan. The April 2012 rating decision denied the Veteran’s claims for entitlement to service connection for hepatitis C and diabetes mellitus. The Veteran appealed and a November 2013 rating decision granted service connection for diabetes mellitus effective February 26, 2013. The Veteran appealed the rating and the effective date in his notice of disagreement. The September 2012 rating decision denied the Veteran’s claim for entitlement to a TDIU. The Veteran appealed. Both appeals were merged and a statement of the case was issued in August 2015. The Veteran perfected his appeal in a VA Form 9 and declined to have a hearing before the Board. 1. Service Connection for Hepatitis C. The Veteran has assert that he is entitled to service connection for hepatitis C because he incurred it while on active duty. He has stated that his hepatitis C is a result of his intervenous drug use while in service. As a preliminary matter, the Board notes that the statement of the case incorrectly stylized this claim as whether new and material evidence had been received to reopen the claim for service connection for hepatitis C. There is no claim to be reopened as the original denial of the Veteran’s claim for service connection for hepatitis C never became final. It was denied in an April 2012 rating decision. Within in the appeal period of one year, the Veteran filed a statement requesting reconsideration on the matter. The Board finds that this constituted a notice of disagreement with the April 2012 decision preventing it from becoming final. See 38 U.S.C. § 7105(a). As such, the issue before the Board is that of entitlement to service connection. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of willful misconduct or, for claims filed after October 31, 1990, the result of abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 (a). The isolated and infrequent use of drugs itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301 (c)(3). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. However, an injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301 (d). Here, the evidence demonstrates the Veteran has a diagnosis of hepatitis C. Moreover, the evidence indicates the Veteran’s hepatitis C was incurred from the use of intervenous drugs while in service. This is noted by in a treatment record from May 2007 and in a February 2013 opinion submitted by the Veteran’s treating physician. The Veteran’s service treatment records indicate he was treated for drug use, including daily use of heroin in October 1971. As the evidence indicates the Veteran incurred hepatitis C as a result of abuse of drugs, the Veteran’s hepatitis C, as a matter of law, cannot be deemed to have been incurred in the line of duty. Therefore, service connection is not warranted. 2. Initial Disability Rating in Excess of 20 percent for Diabetes Mellitus The Veteran has asserted that he is entitled to an increased rating for service connected diabetes mellitus. The condition is currently rated at 20 percent. He has not made any specific allegations as to why an increased rating is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). While the Veteran’s entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (the Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In pertinent part, diabetes mellitus is evaluated under the following rating criteria: Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet (20 percent); Requiring insulin, restricted diet, and regulation of activities (40 percent); 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 (60 percent); 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 (100 percent). 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Id., Note (1). The Board has referred the conditions listed as complications in the 2015 VA examination to the RO for consideration. Here, the Veteran has only appealed the rating for diabetes mellitus, proper. The rating criteria for a 40 percent rating require that the Veteran be administered insulin; that administration of a medical compound or pharmaceutical agent other than insulin that caused the body to secrete insulin endogenously does not warrant a 40 percent rating; and that the use of the conjunctive “and” means that all three successive and cumulative elements of a 40 percent rating must be met in order to warrant that rating. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013); cf. Tatum v. Shinseki, 23 Vet. App. 152 (2009) (applying the “more nearly approximates” language of 4.7 because the rating criteria for hypothyroidism under DC 7903 are not conjunctive, successive and cumulative). Here the Veteran’s treatment records indicate that he has been prescribed Metformin, an oral hypoglycemic agent, and counseled on maintaining a restricted diet for his diabetes. These are the only treatments noted in treatment records or in the April 2015 VA examination. Thus, the manifestations of the Veteran’s diabetes mellitus most closely approximate the criteria for a 20 percent disability rating A higher rating would be warranted if the Veteran required the use of insulin to manage his diabetes mellitus. The record does not indicate such a requirement. The Veteran has not alleged that he requires or has been prescribed insulin to manage his diabetes. Therefore, an initial disability rating in excess of 20 percent for diabetes mellitus is not warranted. 3. Effective Date for Grant of Service Connection for Diabetes Mellitus. The Veteran has asserted that he is entitled to an earlier effective date for the grant of service connection for diabetes mellitus. The Veteran has not made any specific allegations in support of this claim. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If service connection is granted based on a claim received within one year of separation from active duty, the effective date will be the day following separation. Id. Here, the effective date was established as February 23, 2013. It appears this was based on the statement of the Veteran received that day requesting the claim for service connection for diabetes be reconsidered. However, this request was received within one year of the April 2012 rating decision which denied the Veteran’s original claim for service connection. The Board, therefore, finds the request constituted a notice of disagreement with the April 2012 rating decision. As such, the April 2012 rating decision was not final, and the date of claim should be in relation to the claim denied in the April 2012 rating decision. See 38 U.S.C. § 7105(a). The April 2012 rating decision denying the claim of service connection for diabetes mellitus was an adjudication of the claim received on February 16, 2011. Therefore, the proper date of claim in this case is February 16, 2011. However, the record does not support that entitlement was established as of that date. In order to establish entitlement, the evidence must support the establishment of service connection. Service connection requires a present disability, an event or injury in service, and a causal nexus. Here the record does not establish the Veteran had a present disability until April 22, 2011. April 22, 2011, is the first date where there is evidence of diabetes mellitus. It comes in the form of a lab report on that date that indicated the Veteran’s hemoglobin A1C was above 6.5 percent. As noted by the April 2012 examiner, the diagnostic criteria for diabetes mellitus requires a hemoglobin A1C above 6.5 percent confirmed by testing on separate dates. The April 22, 2011, lab result was the first such reading. The April 2012 examiner noted the second such reading was on August 11, 2011. This second reading essentially confirmed the first reading in April 2011. There is no indication in the claims file the Veteran met the diagnostic criteria prior to April 22, 2011. There are no records showing a prior diagnosis. There are no prior lab tests showing an elevated hemoglobin A1C level. The Veteran has not indicated that he was diagnosed with the condition prior to that date. Therefore, the earliest date that entitlement can be established is April 22, 2011, when the Veteran first showed signs of diabetes mellitus in the record. Since the date entitlement was established, April 22, 2011, is after the date of claim, February 16, 2011, the proper effective date for the grant of service connection for diabetes mellitus is later date, April 22, 2011. 4. TDIU In April 2012, the Veteran filed a claim for entitlement to a TDIU based on his service-connected disabilities. The Veteran has contended that his service-connected disabilities have rendered him unable to obtain or sustain employment in a substantially gainful occupation. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). As of the time the Veteran filed his claim, he was service connected for posttraumatic stress disorder (PTSD) 70 percent disability rate, tinnitus at 10 percent, and bilateral hearing loss at a noncompensable rate. This decision has also established the Veteran was service connected for diabetes mellitus at the time, although a rating has not been assigned for the period prior to February 23, 2013. Nevertheless, the Veteran met the schedular criteria at the time of the filing. Furthermore, the evidence is sufficient to establish entitlement to TDIU without consideration of the impairments imposed by the Veteran’s diabetes mellitus. Therefore, the Board will proceed to adjudicate the claim. The Veteran’s social security records indicate that he was last employed in December 2011 and has not been employed since that time. The Veteran has two years of college education, completed in 1984. He worked in the medical field as a health technician prior to becoming unemployed. A VA examination in April 2012 indicated that the Veteran’s PTSD resulted in symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood, difficulty adapting to stressful circumstances, suicidal ideations, and impaired impulse control. In August 2012, the examiner was requested to opine whether this condition affected the Veteran’s employability, and the examiner stated that the Veteran was employable. In December 2016 Dr. HHG interviewed the Veteran after reviewing the Veteran’s claims file. DR. HHG found that the record supported that the Veteran’ had suicidal and homicidal ideations, but without intent to carry them out. He had chronic sleep impairments of insomnia, broken sleep, and nightmares. He had disturbances of motivation, a sense of a foreshortened future, exaggerated startle response, hypervigilance, mild memory loss and impairment of short and long-term memory. He had difficulty concentrating, irritability, and difficulty establishing and maintaining relationships and adapting to stressful circumstances, impaired impulse control, and intermittent inability to perform activities of daily living. She stated that these symptoms were supported by the record starting in April 2012. She stated that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. She cited to the Veteran’s medical records, a vocational study on people with PTSD, and lay statements by the Veteran’s friends and family to support her conclusions. In March 2017, the Dr. SGB, a certified vocational evaluator, reviewed the Veteran’s claims file, and the above opinions. She concluded that the Veteran’s service connected conditions would cause him to miss more work than is acceptable by employers. The Board finds the opinions of Dr. HHG and Dr. SGB are the most probative. They contain a thorough review of the record with an emphasis on the Veteran’s symptoms. Furthermore, their opinions are made with either reference to vocational studies or on the basis of vocational expertise. The August 2012 examiner neither cites to any vocational studies nor identifies any vocational expertise in rendering his opinion on employability, and, thus is found less probative to the issue of TDIU. Therefore, the Board finds that the weight of the evidence establishes that the Veteran is unable to obtain or maintain substantially gainful employment due to his service connected disabilities, and entitlement to a TDIU is warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Reed, Associate Counsel