Citation Nr: 20053729 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 15-16 538 DATE: August 13, 2020 ORDER Entitlement to a rating greater than 20 percent for type II diabetes mellitus (DM) is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to March 20, 2020, is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1967 to July 1971. 2. The evidence does not show that the Veteran required insulin, regulation of activities, and regulation of diet at the same time at any time during the pendency of the claim. 3. The evidence does not show that the Veteran has been unemployed at any time during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.119, Diagnostic Code (DC) 7913 (2019). 2. The criteria for the grant of a TDIU prior to March 20, 2020, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, this case was previously remanded by the Board in December 2019 for additional development, to include developing a claim for a TDIU. A new 21-8940 application form for a TDIU was sent to the Veteran for this purpose but was not returned. The case has now been returned to the Board for further appellate action and the decision will be made on the evidence of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. DM is rated under DC 7913. In order to warrant a higher rating, the evidence must show DM requiring insulin, a restricted diet, and regulation of activities (40 percent under DC 7913). Within the criteria for a 40 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical, physician-directed evidence is required to establish the criterion. Camacho, 21 Vet. App. at 364 (2007); 38 C.F.R. § 4.119, DC 7913. 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, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for lower ratings encompassed within those for higher ratings. See 38 C.F.R. §§ 4.7, 4.21; Camacho, 21 Vet. App. at 366; Tatum v. Shinseki, 23 Vet. App. 152 (2009). Unfortunately, the evidence does not show that the Veteran has required insulin, a restricted diet, and regulation of activities at the same time at any time during the pendency of the claim. First, the Board acknowledges that VA treatment records show providers recommended that the Veteran start using insulin as far back as March 2012. However, the Veteran did not begin injecting insulin until August 2018. Prior to August 2018, the Veteran required an oral hypoglycemic agent. Specifically, January 2012 and December 2013 VA examinations found that the Veteran required a prescribed oral hypoglycemic agent to treat his DM. More recently, August 2018 medical treatment notes reported that the Veteran required insulin therapy for treatment, and a February 2020 VA examination affirmed that he required more than one injection of insulin per day to treat his DM. Accordingly, the evidence shows that the Veteran did not require one or more daily injections of insulin until August 2018. The questions remain as to whether the Veteran also required a restricted diet and regulation of activities from August 2018. Regarding diet, the Veteran’s DM has not been managed by a prescribed diet for the entire pendency of the claim. To that end, January 2012 and December 2013 examinations, as well as a statement received in April 2014 from a private clinician, found that a restricted diet was necessary for treatment of his DM. Treatment records dated in September 2018 indicate that the Veteran still had a dietary regimen; however, the March 2020 VA examination report indicates that the Veteran did not manage his DM with a restricted diet. As such, the medical evidence establishes that prior to March 2020, he required a restricted diet to treat his DM. As for regulation of activities, the Veteran has not required regulation of activities for the entire pendency of the claim. In a December 2013 disability benefits questionnaire, a clinician directed the Veteran to avoid excessive work or physical activities in order to avoid hypoglycemia and found that regulation of activities was required in order to treat his DM. However, as of August 2016, it does not appear that the Veteran required further regulation of activities. Rather, his medical providers urged him to exercise 30 minutes per day as tolerated. Significantly, the March 2020 VA examination report found that the Veteran did not require regulation of activities as part of his medical management of DM. Based on the above, a rating greater than 20 percent is not warranted. In this regard, the Veteran’s DM has not required insulin, a prescribed diet, and clinically directed regulation of activities at the same time at any point during the pendency of the claim. The Board has considered the Veteran’s lay statements as to the current status of his DM. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology and support a 40 percent rating, but no more. Consideration has also been given to assigning staged ratings for the Veteran’s DM. However, at no time during the period in question has his disability warranted higher schedular ratings than those assigned. Hart v. Mansfeld, 21 Vet. App. 505 (2007). The appeal is denied. TDIU Prior to March 20, 2020 TDIU ratings 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 two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16(a). As an initial matter, the Veteran is in receipt of a 100 percent schedular rating from March 20, 2020, based on the combined effect of his service-connected disabilities. The regulations pertaining to the assignment of a TDIU rating provide that such a rating may be assigned where the schedular rating is less than total. 38 C.F.R. § 4.16(a). Here, he is not seeking TDIU based on a single disability and his total schedular rating includes the disabilities for which he is seeking TDIU. As such, the TDIU claim is moot as of March 20, 2020, and the Board has characterized the claim accordingly. Bradley v. Peake, 22 Vet. App. 280 (2008). Additionally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating is inferred in a claim for increase where the Veteran claims his or her disability affects employability, or such a claim is reasonably raised by the record. The claim of entitlement to an increased rating for DM is properly before the Board at this time. Moreover, the record reflects that the Veteran asserted that his DM and associated treatment impacted his ability to work in multiple VA examinations and a July 2012 statement. Therefore, while a claim for TDIU was initially raised by the Board in December 2019, VA is not precluded from assigning an effective date prior to the December 2019 date on which the claim was raised and will consider the appeal period of increased rating claims received prior to that date. Prior to May 18, 2015, the Veteran had service connection for DM, rated 20 percent disabling, and a linear scar, rated noncompensable. His combined disability rating was 20 percent. As such, he does not meet the schedular criteria for a TDIU for the period prior to May 18, 2015. From May 18, 2015 to March 20, 2020, the Veteran was service connected for PN of his left upper extremity at 40 percent, PN of his right upper extremity at 30 percent, type II DM at 20 percent, and PN of the left sciatic nerve, right sciatic nerve, left femoral nerve and right femoral nerve at 20 percent each. He also had a noncompensable rating for a linear scar. The combined rating was 90 percent as of May 18, 2015. Accordingly, the schedular criteria for assignment of a TDIU has been met as of May 18, 2015. While the Veteran’s service-connected disabilities meet the schedular criteria for consideration of a TDIU from May 18, 2015 to March 20, 2020, the Veteran has not met the initial criteria for a TDIU. Specifically, the determinative issue is whether he was rendered unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In this case, there is no evidence that the Veteran has been unemployed at any time during the pendency of the claim. The Veteran’s DD Form 214 indicates that the Veteran’s military occupation was motorized vehicle mechanic. Records also establish that the Veteran has experience working in construction, as a heavy equipment operator, and as a truck driver. A December 2013 examination for DM indicates that the Veteran could not renew his CDL due to his condition; however, February 2013 and October 2013 VA treatment records indicate that the Veteran switched to work in construction. He still worked in construction as of August 2016. In the December 2019 remand, the Board ordered the Agency of Original Jurisdiction (AOJ) to send the Veteran a VA Form 21-8940, the official TDIU claim form, which would have provided VA with his work history and education level. The AOJ sent the form in January 2020; however, the Veteran did not return it. Unfortunately, since the Veteran did not return the VA Form 21-8940, there is no evidence that the Veteran has been unemployed at any time during the pendency of the claim. Before the Board can address whether the Veteran’s service-connected disabilities preclude substantially gainful employment, there must first be evidence of unemployment. Since there is no evidence that the Veteran has been unemployed at any time during the pendency of the claim, the claim for a TDIU must be denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (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). AMANDA G. ALDERMAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.