Citation Nr: 20052483 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 11-18 050 DATE: August 6, 2020 ORDER Entitlement to service connection for a genitourinary condition is dismissed. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. While the Veteran’s claim was in appellate status, a February 2020 rating decision granted his claim for entitlement to service connection for a genitourinary condition, i.e., voiding dysfunction; therefore, there is no remaining case or controversy pertaining to this claim. 2. The Veteran’s diabetes mellitus has required oral medication, insulin injections, and a restricted diet, but has not required a regulation of activities. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a genitourinary condition. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. The criteria for an initial rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to March 1969. In January 2016, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. This matter is before the Board of Veterans’ Appeals (Board) following Board Remands in June 2016 and October 2017. A claim for a TDIU is part and parcel of an increased rating claim where, as here, a claimant asserts that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Notably, the Veteran has essentially testified that he is not employable due to his service-connected diabetes mellitus which is the subject of his increased rating claim. The Board has, therefore, characterized the issues on appeal to include a claim for a TDIU. 1. Service connection for a genitourinary condition is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. In a February 2020 rating decision, the RO granted service connection for voiding dysfunction which constitutes a full grant of the benefit for the issue of service connection for a genitourinary condition. As a result, no case or controversy regarding this issue remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the issue; the claim is dismissed. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. The Veteran asserts that he is entitled to a higher rating because his diabetes mellitus caused him to lose his commercial driver’s license which has taken him out of the job market. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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 when diabetes requires 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Veteran underwent VA examinations in March 2009, September 2016, March 2019. In March 2009, the examiner noted that insulin had been discontinued due to hypoglycemia in 2006 and the Veteran had been prescribed oral medications in 2008; the examiner noted that the Veteran denied that his activities were restricted to prevent hypoglycemia and that he walked ½ mile daily. In September 2016, the examiner noted that the Veteran’s diabetes mellitus was managed by restricted and prescribed oral hypoglycemic agents; regulation of activities was not required as part of medical management of diabetes mellitus. In March 2019, the examiner noted that the Veteran’s diabetes mellitus treatment included restricted diet, prescribed oral hypoglycemic agents, and insulin with one injection per day; regulation of activities was not required as part of medical management of diabetes mellitus. The Board finds that the Veteran’s diabetes mellitus required only restricted diet, one daily injection of insulin, and an oral glycemic agent during the period on appeal. The medical evidence indicates that regulation of activities has not been required during the period on appeal. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. The Board notes that the Veteran has complications of diabetes mellitus including peripheral neuropathy, erectile dysfunction, and voiding dysfunction. Service connection has been established for these complications. REASONS FOR REMAND 3. Entitlement to a TDIU is remanded. The agency of original jurisdiction (AOJ) has not yet had the opportunity to develop the raised claim of entitlement to a TDIU. Rice, 22 Vet. App. 447. On remand, the AOJ should provide the Veteran sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice as to this issue and seek his employment information. The matters are REMANDED for the following action: 1. Send the Veteran sufficient VCAA notice as to his claim of entitlement to a TDIU. 2. Request that the Veteran submit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Obtain the Veteran’s updated VA treatment records. 4. Schedule the Veteran for an appropriate VA examination(s) to address his TDIU claim. (Continued on the next page)   5. After the above development and any additionally indicated development has been completed, adjudicate the issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.