Citation Nr: 19124345 Decision Date: 04/02/19 Archive Date: 04/01/19 DOCKET NO. 07-13 046 DATE: April 2, 2019 SUPPLEMENTAL DECISION ORDER Entitlement to an initial disability rating in excess of 10 percent for service connection diabetes mellitus, type II, prior to May 12, 2015 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 31, 2013 is remanded. FINDING OF FACT Prior to May 12, 2015, the Veteran’s service-connected diabetes mellitus, type II, was managed by restricted diet only and did not require the use of insulin or oral hypoglycemic agents. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for service connection diabetes mellitus, type II, prior to May 12, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.120, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 and April 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the January 2017 and March 2017 substantive appeals, the Veteran declined an optional Board hearing. The undersigned Veterans’ Law Judge has been assigned to consider this appeal pursuant to 38 C.F.R. § 19.3(a). In November 2017, the Board issued a decision adjudicating and remanding several claims, and the Veteran has perfected an appeal before the United States Court of Appeals for Veterans Claims (Court) as to the issues denied in that decision. Regrettably, the claims addressed in the instant decision were within the Board’s jurisdiction at the time of the November 2017 Board decision but were not addressed. The Board has statutory authority to correct obvious errors in the record and possesses five methods by which to correct error: reconsideration, revision based on clear and unmistakable error, corrected orders, supplemental decisions, and vacatur. 38 C.F.R. §§ 20.904, 20.1000-1001, 20.1102, 20.1400-1411; Board Purple book 09-18-v1.0.2, chap. XIII. A supplemental decision, remand, or order may be used for correcting an obvious error consisting of the inadvertent failure to address an issue within the Board’s jurisdiction in a prior decision, remand, or order. With the timely filing of the January 2017 and March 2017 substantive appeals, the Veteran had perfected an appeal on the issues of entitlement to an initial disability rating in excess of 10 percent for service connection diabetes mellitus, type II, prior to May 12, 2015 and entitlement to a TDIU prior to January 31, 2013, and both claims were within the Board’s jurisdiction at the time of the November 2017 Board decision but were inadvertently unaddressed. cf. Ingram v. Nicholson, 21 Vet. App. 232, 242 (2007) (claims which are not adjudicated remain pending until adjudicated). Under the present circumstances, the Board shall proceed with a supplemental decision addressing entitlement to an initial disability rating in excess of 10 percent for service connection diabetes mellitus, type II, prior to May 12, 2015 and entitlement to a TDIU prior to January 31, 2013. As to the claim adjudicated below, neither the Veteran nor his attorney has raised any issues with VA’s duty to notify or VA’s 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.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Although additional evidence has been received since the December 2016 Statement of the Case, this evidence is not relevant to the claim adjudicated below; thus, waiver for initial AOJ review is not warranted. 38 C.F.R. § 20.1304(c). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Entitlement to an initial disability rating in excess of 10 percent for service connection diabetes mellitus, type II, prior to May 12, 2015 is denied. For the period prior to May 12, 2015, the Veteran is in receipt of a 10 percent disability rating for his service-connected diabetes mellitus, type II, under 38 C.F.R. § 4.120, Diagnostic Code 7913, because the RO determined that his disability was managed with restricted diet only. On appeal, the Veteran seeks a higher disability rating. Under Diagnostic Code 7913, a higher 20 percent disability rating is warranted when the evidence establishes that diabetes mellitus requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent rating. A rating of 60 percent is assigned when diabetes mellitus 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. 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 rating. In an April 2015 rating decision, the RO granted entitlement to service connection for diabetes mellitus, type II, and assigned a 10 percent disability rating effective on January 28, 2014, the initial date of claim. In May 2015, the Veteran’s attorney filed a timely notice of disagreement arguing that the Veteran was taking oral hypoglycemic agents to treat his diabetes mellitus, type II. VA treatment records dated May 7, 2015 show that the Veteran was to “start metformin 500 mg daily.” Metformin is an oral hypoglycemic agent. See VA prescription records. Despite this May 7th treatment date, the Veteran’s VA prescription records show that the Veteran was not formally prescribed Metformin until May 12, 2015; and thus, the RO was correct in assigning May 12, 2015 as the date upon which the evidence supported a higher 20 percent disability rating. See unappealed December 2016 rating decision. For the period prior to May 12, 2015, there is no competent evidence to support a rating higher than the currently assessed 10 percent disability rating for diabetes mellitus, type II. Review of the medical records during the appellate period fails to show that the Veteran was ever prescribed insulin or oral hypoglycemic agents for treatment of service-connected diabetes mellitus, type II, prior to May 12, 2015. At the February 2015 VA examination, the VA examiner noted that the Veteran had “no history of oral hypoglycemics or insulin use.” Consequently, the electronic claims file contains no competent evidence dated prior to May 12, 2015 demonstrating that the Veteran’s diabetes mellitus, type II, required management through insulin or oral hypoglycemic use, sufficient to warrant a higher 20 percent evaluation. Aside from restricted diet, the Veteran has not satisfied any of the rating criteria for a higher 40, 60, or 100 percent rating during the appellate period. Instead, the evidence is clear that the Veteran’s service-connected diabetes mellitus, type II, was only managed by a restricted diet prior to May 12, 2015, commensurate with his current 10 percent rating during the appellate period. In light of the above analysis, the Veteran’s request for a disability rating in excess of 10 percent for service-connected diabetes mellitus, type II, prior to May 12, 2015 is denied. REASONS FOR REMAND In January 2014, the Veteran filed VA form 21-8940, “Veterans Application for Increased Compensation based on Unemployability” seeking entitlement to a TDIU based on the cumulative effects of PTSD, hearing loss, and diabetes mellitus, type II. The Veteran was denied entitlement to a TDIU in an April 2015 rating decision. In May 2015, the Veteran filed a timely notice of disagreement. In the December 2016 Statement of the Case, the Veteran was notified that his claim seeking entitlement to a TDIU was moot because a May 2015 rating decision had granted the Veteran a 100 percent schedular rating for service-connected PTSD effective January 31, 2013, which was prior to the Veteran’s formal application seeking entitlement to a TDIU. In January 2017, the Veteran filed a timely substantive appeal seeking entitlement to a TDIU back to 2006. In February 2017, the RO issued another Statement of the Case addressing entitlement to a TDIU prior to January 31, 2013, as part and parcel with the increased rating claim for PTSD filed in January 2012. In March 2017, the Veteran filed a timely substantive appeal seeking the Board’s review. The Board recognizes that, although 38 C.F.R. § 4.16(a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The United States Court of Appeals for Veterans Claims (Court) held in Buie, 24 Vet. App. at 50, and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). Here, the Veteran has been granted SMC housebound status effective May 12, 2015. See January 2017 rating decision. Between January 31, 2013 (when the Veteran was granted PTSD rated at 100 percent) and May 12, 2015 (when SMC housebound status was granted) there is no allegation or evidence that the Veteran’s service-connected disabilities, excluding PTSD, either individually or cumulatively rendered the Veteran individually unemployable, sufficient to give rise to entitlement to SMC during this timeframe. See Buie, 24 Vet. App. at 50; Bradley, 22 Vet. App. at 294. In fact, in the January 2014 VA form 21-8940, the Veteran directly alleged that his claim of entitlement to a TDIU was based on the cumulative effect of his PTSD, bilateral hearing loss, and diabetes mellitus, type II. Thus, TDIU is moot during this period, as there is no evidence suggesting a TDIU could be granted for a disability other than the disability for which a 100 percent schedular rating for PTSD was in effect. Although the Veteran filed his formal request for entitlement in TDIU in January 2014, a TDIU claim may be part and parcel with an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, an implicit claim for TDIU prior to January 31, 2013 due to PTSD and bilateral hearing loss (the Veteran was not granted service connection for diabetes mellitus, type II, until January 28, 2014) was reasonably raised by the record (as part and parcel with the PTSD increased rating claim filed in January 2012 – and as set forth below, part and parcel with the pending increased rating claim for bilateral hearing loss filed in August 2005) and was ultimately adjudicated in an April 2015 rating decision and December 2016/February 2017 Statements of the Case. In January 2017 and March 2017 substantive appeals, the Veteran perfected the appeal on this issue. Consequently, a claim of entitlement to a TDIU prior to January 31, 2013 is within the Board’s jurisdiction; and as noted supra, should have been addressed in the November 2017 Board decision. Review of the electronic claims file reveals that the Veteran did not meet the schedular criteria for entitlement to a TDIU prior to January 31, 2013, as his total combined disability rating was 50 percent. 38 C.F.R. §4.16(a). However, the Veteran claimed entitlement to a TDIU based in part on PTSD and bilateral hearing loss, and an increased rating claim for service-connected bilateral hearing loss (with an appellate period dating back to August 2005) is currently in remand status undergoing additional evidentiary development as directed by the November 2017 Board decision. A potential grant of a higher disability rating for service-connected bilateral hearing loss could increase the Veteran’s overall combined disability percentage prior to January 31, 2013, thus satisfying the schedular requirements for a TDIU. Accordingly, the Board finds that the issue of entitlement to a TDIU prior to January 31, 2013 is inextricably intertwined with the pending increased rating claim for bilateral hearing loss currently in remand status. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims “are inextricably linked together” where a favorable decision on one “could have a significant impact” on the other). The issue of entitlement to a TDIU prior to January 31, 2013 is remanded to the RO for concurrent readjudication with the pending increased rating claim for bilateral hearing loss. The matter is REMANDED for the following action: Readjudicate a claim of entitlement to a TDIU prior to January 31, 2013 following readjudication of the increased rating claim for service-connected bilateral hearing loss currently in remand status. If the TDIU claim remains denied, issue a Supplemental Statement of the Case to the Veteran and his attorney, and grant them an opportunity to respond before returning the matter to the Board for further appellate consideration. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel