Citation Nr: 20038121 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 18-25 959 DATE: June 3, 2020 ORDER A total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. Service connection for diabetes mellitus is denied. Service connection for a right knee condition is denied. FINDINGS OF FACT 1. From January 4, 2017 to March 5, 2017 and from June 9, 2017 to February 24, 2019, the Veteran was rated 50 percent for his PTSD. He was not service connected for any other disabilities during this time. Thus, he does not satisfy the criteria for a schedular TDIU rating during these time periods. 2. The preponderance of the evidence does not indicate that the Veteran’s PTSD has exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment during the relevant period. 3. The Veteran’s diabetes mellitus did not manifest in service, was not a substantial contributing factor to his obesity, and is not otherwise causally related to his active duty military service. 4. The Veteran’s right knee condition (arthritis) did not manifest in service, was not a substantial contributing factor to his obesity, and is not otherwise causally related to his active duty military service. CONCLUSIONS OF LAW 1. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to August 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes VA received the Veteran’s claim for TDIU on June 1, 2017. The Veteran was rated 100 percent at the time for his service-connected PTSD and would not have been eligible for a TDIU rating prior to June 9, 2017 when his rating was reduced to less than 100 percent. The Board remanded the Veteran’s case in June 2019 to obtain new VA examinations and Social Security Administration (SSA) records, which have been associated with the claims file. The Board denied the Veteran’s claim for an increased disability rating for PTSD in that decision and that claim will not be considered herein. 1. A TDIU rating due to a service-connected disability is denied. The Veteran is in receipt of a 100 percent rating from March 6, 2017 to June 9, 2017 and from February 24, 2019. The Board recognizes that 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. In this case, however, for the relevant period of time, the Veteran was only in receipt of service connection for PTSD. Consequently, the granting of a TDIU could not assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). The issue of entitlement to a TDIU for this time period is therefore moot; therefore, the Board will consider entitlement to a TDIU only for those portions of the relevant appeal period during which the Veteran was not in receipt of a 100 percent disability rating. It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Between June 9, 2017 and February 24, 2019, the Veteran did not have a service-connected disability that was rated at least 60 percent disabling nor did he have multiple service-connected disabilities, combining to a 70 percent or greater level of impairment with at least one disability rated 40 percent and thus he does not meet the schedular criteria for TDIU eligibility. 38 C.F.R. § 4.16(a). Thus, because the Veteran does not meet the schedular requirement for a TDIU rating, his claim for a TDIU rating is denied under 38 C.F.R. § 4.16(a). Additionally, the preponderance of the evidence does not indicate that the Veteran’s PTSD has exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment during the relevant period. The Board notes in this regard that the Board adjudicated the Veteran’s claim for an increased rating for PTSD in a June 2019 decision. The Board found at that time that the Veteran’s PTSD disability did not result in total occupational impairment and his disability rating of 50 percent was appropriate. The Board notes that there is no subsequent indication in the record that the Veteran’s PTSD has exceptional or unusual circumstances associated with the disability during the relevant period. Thus, there is no indication of a need for referral for extraschedular consideration. Service Connection Legal Criteria The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claim at hand. “Service connection” means that a Veteran has a disability resulting from a disease or injury that began in or was aggravated by active service. 38 C.F.R. § 3.303. To establish direct service connection, there must be evidence of (1) a present disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a causal link (“nexus”) between the in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes mellitus and arthritis, service connection may also be established with evidence that the chronic disease began during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). 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). While obesity itself is not a disability that can be compensated by VA, it can be an intermediate step between a current disability and a service-connected disability if it is found that “(1) the service-connected disability caused the veteran to become obese; (2) the obesity was a substantial factor in causing or aggravating the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability.” Walsh v. Wilkie, No. 18-0495, 2020 U.S. App. Vet. Claims LEXIS 295, at *1 (Vet. App. Feb. 24, 2020). Factual Background The Veteran’s military personnel records indicate the Veteran served on active duty for approximately one month in 1975. Records also indicate he was at basic training for one week and had 24 days of active duty service. The Veteran’s service treatment records (STRs) are silent for any treatment for a right knee injury or condition or diabetes mellitus during active duty service. In the Veteran’s SSA records, a July 2011 disability determination examination noted the Veteran reported he was diagnosed with diabetes in 2004. The Veteran reported a family history of diabetes and stated that his feet occasionally get numb and swell, but otherwise has no other complications. In a March 2020 VA examination, the examiner diagnosed the Veteran with right knee arthritis. The examiner opined that the Veteran’s right knee arthritis was less likely than not incurred in or caused by his service. The examiner reasoned that the Veteran’s service treatment records do not contain complaints, diagnosis, or treatment for right knee arthritis. In a March 2020 VA examination, the examiner diagnosed the veteran with diabetes mellitus type II. The examiner opined that the Veteran’s diabetes mellitus type II was less likely than not incurred in or caused by his service. The examiner reasoned that the Veteran’s service treatment records do not contain complaints, diagnosis, or treatment for diabetes. The examiner also opined that the Veteran’s service-connected PTSD caused the Veteran to become obese. However, the examiner further opined that the Veteran’s obesity was not a substantial factor in causing either the Veteran’s right knee condition or his diabetes mellitus. The examiner reasoned that the Veteran has a family history of diabetes and the Veteran’s genetics are the more likely cause of his diabetes. Further, the examiner reasoned that the medical literature shows repetitive stress injuries cause knee arthritis and that the Veteran was a forklift operator which was the more likely cause of the Veteran’s right knee arthritis and not the Veteran’s obesity. 2. Service connection for diabetes mellitus is denied. Analysis The Board finds the Veteran’s claim for service connection for diabetes mellitus fails on a direct basis because there is no evidence of an in-service injury, event, or diagnosis. Although the Veteran satisfies the first element of service connection (a current disability) the record fails to show that he suffered any injury or event in service which would have led to diabetes mellitus, nor was he diagnosed or treated for the condition during the month he was on active duty. However, the Veteran may still prevail on his claim based on his obesity being an intermediate step between his PTSD and diabetes mellitus. Here, the Board finds the Veteran fails to meet the standard for service connection based on obesity as an intermediate step. Walsh v. Wilkie, No. 18-0495, 2020 U.S. App. Vet. Claims LEXIS 295, at *1 (Vet. App. Feb. 24, 2020). The March 2020 VA examiner opined that the Veteran’s obesity was not a substantial factor in the Veteran developing diabetes mellitus. The Board finds the examiner’s opinion competent, credible, and affords it great probative weight in deciding the Veteran’s claim because it is factually accurate and based on sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). There is no other medically objective evidence within the claims file weighing in favor of finding the Veteran’s obesity led to his diabetes mellitus. Additionally, although the Veteran has asserted that his diabetes in due to his obesity in argument presented by his counsel, the Veteran is not competent to make this medical determination thus the Board can give that evidence no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that lay persons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions). Additionally, there is no evidence within the claims file indicating that the Veteran’s PTSD directly caused or aggravated his diabetes mellitus. The Board notes the Veteran does not assert that the condition arose within one year of service, nor does the record raise the possibility that the Veteran’s diabetes mellitus has persisted since his service. Therefore, because the evidence fails to show the Veteran’s obesity was a substantial factor causing his diabetes mellitus, the preponderance of evidence also weighs against finding that but for the obesity, the Veteran would not have developed diabetes mellitus. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 3. Service connection for a right knee condition is denied. Analysis The Board finds the Veteran’s claim for service connection for right knee fails on a direct basis because there is no evidence of an in-service injury, event, or diagnosis. Although the Veteran satisfies the first element of service connection (a current disability) the record fails to show that he suffered an injury or event in service which would have led to right knee, nor was he diagnosed or treated for the condition during the month he was on active duty. However, as above, the Veteran may still prevail on his claim based on his obesity being and intermediate step between his PTSD and his right knee condition. As above, the March 2020 VA examiner opined that the Veteran’s obesity was not a substantial factor leading to his right knee condition (arthritis). The Board affords the March 2020 examination great probative weight because it is based on accurate facts and provides an adequate rationale for its opinion. The examiner indicated that it was not the Veteran’s obesity that led to him developing right knee arthritis but his work history and the repetitive motions on the Veteran’s jobs. As with diabetes mellitus, there is no objective medical evidence within the record to support a finding that the Veteran’s right knee arthritis would not have occurred but for his obesity caused by his PTSD. Therefore, as the Veteran’s obesity is not an intermediate step leading to his right knee condition and there was no in-service injury or event leading to the Veteran’s right knee condition, the preponderance of evidence weighs against finding service connection for a right knee condition is warranted. Additionally, there is no evidence within the claims file indicated that the Veteran’s PTSD directly caused or aggravated his right knee condition. The Board notes the Veteran does not assert that the condition arose within one year of service, nor does the record indicated that the Veteran’s right knee condition has persisted since his service. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. JENNIFER WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.