Citation Nr: 19129016 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 10-40 257 DATE: April 16, 2019 ORDER Entitlement to an initial rating higher than 20 percent for diabetes mellitus, type II (DM) is denied. REMANDED Entitlement total disability rating based on individual unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b), prior to February 9, 2015, is remanded. FINDING OF FACT The Veteran’s DM required insulin and a restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.119, DC 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1969. The Veteran passed away in March 2018, and the appellant is his surviving spouse and has been substituted as the claimant. This case comes before the Board of Veterans’ Appeals Board on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied an increased rating for the Veteran’s service connected diabetes, rated 20 percent. In a January 2015 decision, the Board denied entitlement to an initial rating higher than 20 percent for DM. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which in a December 2015 Order and pursuant to a Joint Motion for Remand (JMR), vacated the January 2015 denial and remanded the case to the Board. The Veteran asserted in a formal May 2015 application for TDIU (VA Form 21-8940) that he was entitled to TDIU based on his diabetes mellitus and that the disability affected his full-time employment in January 2008. The RO, in an August 2015 rating decision, granted TDIU effective February 9, 2015. This was the date that the Veteran became eligible for a TDIU on a schedular basis. However, the issue of entitlement to a TDIU was on appeal as part and parcel of the increased rating claim that was filed in March 2009. This is a separate matter from the formal TDIU claim. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The issue of entitlement to TDIU, prior to February 9, 2015, is thus before the Board. Id. (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). 1. Entitlement to an increased rating higher than 20 percent for diabetes mellitus, type II (DM) Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s DM was rated at 20 percent disabling under 38 C.F.R. § 4.119, DC 7913. Under DC 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes 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. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, 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, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. See Camacho, 21 Vet. App. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). VA treatment records in April 2009 document that the Veteran presented with left periungeal swelling, hyperemia and pain. The assessment was uncontrolled diabetes and laboratory tests were ordered. A June 2009 VA examination report reflects that the Veteran reported his blood sugar had been under control most of the time with the current treatment. He required insulin every morning and every afternoon before breakfast and dinner. He denied hospitalization or surgery, pancreatic trauma, pancreatic neoplasm, and episodes of hypoglycemia reaction or ketoacidosis. He was instructed to follow a restricted or special diet, but he was no restricted in ability to perform strenuous activities. There was no weight change. VA treatment records in December 2009 and April 2010 indicate that DM was controlled. In June 2010, the Veteran had been with uncontrolled DM. He referred to feeling thirsty with polyurea and polydipsia. His wife said she tried to get his DM under control, but the Veteran had dementia and ate all he could. Diagnostic impression was hyperglycemia, uncontrolled DM, poor compliance with diet, and obesity. Treatment plan included increasing his insulin and sending the Veteran to a dietician for education about the importance of diet. He was prescribed a diabetic diet. In September 2010 his DM was better controlled. VA treatment records from December 2011 to August 2014 document that the Veteran’s DM was controlled with the current insulin regiment, and do not reflect the need for regulation of activities. During this time, the record also reflects that the Veteran was bedridden due to his dementia. A September 2014 VA examination report indicates that the Veteran’s DM was managed by restricted diet and one insulin injection per day. The Veteran did not require regulation of activities as part of his medical management of DM. The examiner noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis and/or hypoglycemia less than twice per month. The examiner also noted that the Veteran required three or more hospitalizations over the past 12 months for episodes of ketoacidosis and hypoglycemia. There was no unintentional weight loss or loss of strength. The Veteran was accompanied by the appellant who was his caretaker, and she stated that since his last VA examination in July 2009 there had not been hospitalizations due to uncontrolled diabetes (ketoacidosis or hypoglycemia). Presently, his diabetes was being controlled with a diabetic diet and with insulin once daily. During the interview the veteran was seen on a stretcher. The examiner noted that he had dementia and was bedridden, which was not related to his service-connected DM or peripheral neuropathy. A May 2015 VA examination report documents that the Veteran’s DM was managed by restricted diet and one insulin injection per day. He did not require regulation of activities as part of his medical management of DM. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than twice per month, and there were no hospitalizations for hypoglycemia or ketoacidosis in the past 12 months. There was no weight loss or loss of strength. The examiner noted that the Veteran had Alzheimer’s dementia and could not give details of his daily symptoms, so the history was given by the appellant who was his caretaker. In June 2018, the same VA examiner who examined the Veteran in September 2014 provided clarification regarding the inconsistencies the parties to the JMR noted in the September 2014 VA examination report. After review of the September 2014 VA examination, the examiner noted that there had been an error when marking the hospitalizations or frequent visits to a diabetic provider due to ketoacidosis or hypoglycemic reaction, and that the correct answer should have been “zero.” The examiner noted that at the time of the Veteran’s evaluation, he had not had a hospitalization due to ketoacidosis or hypoglycemic reaction. This was corroborated by the information the appellant provided in the “Remarks” section and by the available information in the record. In addition, the record did not show that the Veteran’s DM required regulations of activities from 2008 up to his September 2014. At the time of the September 2014 VA examination, the Veteran’s DM was well controlled and therefore would not affect regulation of his activities. In examiner also noted that this was also the case at the time of his May 2015 VA examination. The veteran was noted to be chronically bedridden due to dementia which would affect regulation of activities. Lastly, the June 2018 VA examiner noted that at the time of his September 2014 VA examination, the Veteran was bedridden due to non-service connected dementia and not due to service-connected DM and diabetic neuropathy. Review of the medical literature reflected that patients with late stage dementia became bedridden and dependent of all activities of daily living. The above reflects that there is no medical evidence of “avoidance of strenuous occupational and recreational activities.” Notably, the June 2018 VA examiner, in response to the Board’s remand instructions which were based on the JMR, reviewed the claims file and noted that none of the VA examinations found that the Veteran required regulations of activities to manage his DM. This was corroborated by the Veteran’s medical records starting in 2008. In addition, the June 2018 VA examiner corrected the discrepancies in the September 2014 VA examination report, explaining that the number of hospital visits had been marked incorrectly as three visits, when it should have been “zero.” This was corroborated by the appellant who was the Veteran’s caretaker in September 2014. Lastly, the June 2018 VA examiner explained that at the time of his September 2014 VA examination, the Veteran was bedridden due to his dementia and Alzheimer’s, citing to medical literature that described that patients with late stage dementia became bedridden and dependent of all activities of daily living. Thus, the record reflects that the Veteran required insulin injections and a restricted diet to regulate his DM for the entirety of the appeal period. He did not require a restriction in his level of activities, he had not experienced any episodes of ketoacidosis or hypoglycemia requiring hospitalization, or twice a month visits to his diabetic care provider due to DM complications. As the higher ratings all require regulation of activities, and in any event as there is no argument or evidence of ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider twice a month, the preponderance of the evidence is against an initial rating higher than 20 percent for the Veteran’s DM. The benefit of the doubt doctrine is thus not for application in this regard. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered the appellant’s claim and decided entitlement based on the evidence. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).” REASONS FOR REMAND 1. Entitlement to TDIU prior to February 9, 2015, on an extraschedular basis under 38 C.F.R. § 4.16(b) is remanded. The Veteran was awarded a TDIU effective February 9, 2015. However, the appellant contends that a TDIU should be awarded from the date of the claim for DM. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Here, the Veteran is service-connected for right upper extremity diabetic neuropathy associated with DM (rated at 40 percent from February 9, 2015); left upper extremity diabetic neuropathy associated with DM (rated at 30 percent from February 9, 2015); DM (rated at 20 percent from October 24, 2007); low back strain (rated at noncompensable from July 9, 1971, and rated at 20 percent from November 4, 2008); right lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with DM (rated at 10 percent from October 24, 2007, and 20 percent from February 9, 2015); left lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with DM (rated at 10 percent from October 24, 2007, and 20 percent from February 9, 2015); right lower extremity diabetic peripheral neuropathy (femoral nerve) associated with DM (rated at 20 percent from February 9, 2015); left lower extremity diabetic peripheral neuropathy (femoral nerve) associated with DM (rated at 20 percent from February 9, 2015); and coronary artery disease (rated at 10 percent from May 13, 2009). The Veteran’s combined ratings are noncompensable from July 9, 1971; 40 percent from October 24, 2007; 50 percent from November 4, 2008; 60 percent from May 13, 2009, and 90 percent from February 9, 2015. For rating purposes, he has one single disability rating with a common etiology for his DM and associated peripheral neuropathy, with combined ratings of 40 percent from October 24, 2007; and a rating of 80 percent from February 9, 2015. Thus, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to February 9, 2015. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot, however, consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Recently, the Court explained that this initial extraschedular referral decision under § 4.16(b) should addresses whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, No. 17-0781 (Vet. App. Mar. 14, 2019). The June 2018 VA examiner noted that the June 2009 peripheral nerves VA examination showed that the Veteran’s lower extremity diabetic neuropathy moderately affected the Veteran with exercising and sports, in addition to his description that he could not remain standing for prolonged periods of time. Further, he also noted that the May 2015 VA examination report described the severity of his bilateral upper and lower diabetic neuropathy as moderate. In view of the available signs, symptoms, and descriptions, the June 2018 VA examiner opined that the Veteran’s bilateral upper and lower diabetic neuropathy would have interfered in his ability to function in an occupational environment that required strenuous activities, heavy lifting, heavy pushing and pulling, prolonged repetitive movements of hands, work requiring fine motor skills of hands, and standing or walking for prolonged periods of time during the time corresponding from 2008 up to 2015. The Board thus finds that this case meets the criteria for consideration of an extra-schedular rating as there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. A remand is therefore warranted for referral of the issue of entitlement to a TDIU prior to February 9, 2015 to the Director of Compensation for a determination as to the Veteran’s entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to February 9, 2015 to VA’s Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel