Citation Nr: 21000131 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-20 999 DATE: January 4, 2021 ORDER A rating greater than 10 percent for diabetes mellitus type II is denied. A rating greater than 60 percent for myocardial infarction is denied. From January 23, 2013, a total disability rating based on individual employability (TDIU) due to service-connected disabilities is granted, subject to the regulations governing the award of monetary benefits. REMANDED A rating greater than 10 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. A rating greater than 10 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. From April 17, 2008, to September 10, 2015, a rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded. From September 10, 2015, to the present, a rating greater than 70 percent for PTSD is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, diabetes mellitus was manageable with a restricted diet only; the Veteran did not require one or more daily injection of insulin or oral hypoglycemic agents. 2. Throughout the period on appeal, a heart disability was not productive of myocardial infarction or chronic congestive heart failure; objective testing did not reveal a workload of 3 METs or less with accompanying dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. From January 23, 2013, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 7913. 2. The criteria for a rating greater than 60 percent for myocardial infarction have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7006. 3. From January 23, 2013, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1963 to July 1970, including foreign service in Germany and the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and Vietnam Service Medal. In January 2019, the Board remanded all but the pending psychiatric appeals for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At that time, the Board also denied the Veteran’s claim seeking higher ratings for his PTSD. However, the Court of Appeals for Veterans Claims (Court) vacated these determinations and remanded the matters for further consideration in December 2019. Increased Ratings The Veteran is currently pursuing higher ratings for his diabetes mellitus and heart disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Before turning to the merits of these appeals, the Board must first address the relevant procedural history. As noted in January 2019, these matters come before the Board from a February 2017 rating decision, which indicates that the determinations therein were offered upon an April 2014 Notice of Disagreement (NOD) to a prior rating decision. This history was offered in error, as the Veteran did not submit a timely NOD in April 2014 which is relevant to the pending claims. Rather, it appears that the February 2017 rating decision was initiated by an April 2014 claim seeking entitlement to a TDIU, and to which increased rating claims were attached. Thus, the April 2014 claim dictates the appeal period in this case, to include the period for evidentiary consideration. Diabetes Mellitus First, the Veteran is pursuing a rating greater than 10 percent for his diabetes. He has been rated in accordance with DC 7913, under which a 20 percent rating is warranted upon evidence of the following: • Diabetes requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119 Here, the Veteran is separately service-connected for peripheral neuropathy of the bilateral lower extremities as secondary to his diabetes. As such, any manifestations of these conditions are not for consideration with respect to this appeal. Also as defined in DC 7913, “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Id. The requirement of regulation of activities due to diabetes must be based on the clinical findings of a medical professional. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because the rating criteria under DC 7913 are cumulative and successive, diabetes that does not meet the criteria at any one level of disability is precluded from the assignment of an increased evaluation at any higher level, since “each higher disability rating include[s] the criteria of each lower disability rating.” Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (citing Camacho, 21 Vet. App. at 366-67). In other words, this appeal cannot be granted absent competent evidence that the Veteran’s diabetes required treatment via insulin and a restricted diet, or oral hypoglycemic agent and a restricted diet. Such evidence is not present in this case. Rather, in September 2015, a VA examiner reported that the Veteran did not require treatment for his diabetes, to include via the regulation of activities or with medication. Instead, the examiner concluded that there was no evidence of diabetes in the Veteran upon his contemporaneous evaluation. The Veteran’s treatment records support this understanding of his disability picture during the period on appeal. Although these records were reviewed in conjunction with this appeal, it does not appear that the Veteran solicited significant private treatment for his diabetes at any time. Rather, his VA treatment records clearly establish that his disability was well-managed by a restricted diet only. A history of additional treatment, to include medications, insulin injections, or oral hypoglycemic agents, was repeatedly denied. As a result, these records are silent for a notable history of active symptoms. The remainder of the record is also silent for any lay testimony speaking to the nature or severity of the Veteran’s diabetes during the period on appeal. Importantly, neither the Veteran nor his representative have offered any specific argument on this point, to include why a higher rating is purportedly warranted in this case. In sum, the Veteran did not require treatment for his diabetes via insulin injections or oral hypoglycemic agents at any point during the period on appeal. Rather, his disability was manageable by a restricted diet only, such that he was effectively asymptomatic. Such a disability picture is directly embodied in the criteria for a 10 percent rating as currently assigned, and there is no basis upon which to award a higher rating in this case. Accordingly, the preponderance of the evidence is against the appeal, the benefit of the doubt rule is not applicable, and the claim seeking a rating greater than 10 percent for diabetes mellitus is hereby denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Heart Disability The Veteran is additionally seeking a rating greater than 60 percent for his heart disability. Of note, the Veteran was previously rated in accordance with DC 7005; throughout the period on appeal, the applied DC was altered to 7006. Such an alteration bears no impact on the Veteran, as the criteria for a higher rating under both DCs are nearly identical. Moreover, DC 7006 provides an additional avenue upon which this appeal may be granted, to the benefit of the Veteran. Accordingly, DC 7006 establishes a 100 percent rating upon evidence of the following: • During and for three months following a myocardial infarction, as documented by laboratory tests; or • Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. An accompanying note to DC 7006 indicates that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). As an initial matter, the record definitively establishes that the Veteran’s myocardial infarction occurred in May 2003, with stents placed at that time and again in 2008. See, e.g., September 2015 (recording Veteran’s heart history); see generally VA and private treatment records. The Veteran did not experience a subsequent myocardial infarction as documented by laboratory tests, such that the appeal cannot succeed on this basis. Similarly, the record does not demonstrate such a history of chronic congestive heart failure that a higher rating may be awarded on this criterium. Rather, a September 2015 VA examiner denied that the Veteran had congestive heart failure, and such a disability picture is otherwise absent from VA and private treatment records. Finally, objective medical testing does not yield a higher rating in this case. In this respect, an interview-based METs test was conducted in conjunction with the September 2015 VA examination, during which a workload of greater than 3 to 5 METs was recorded as accompanied by angina. Left ventricular dysfunction was also reported with an ejection fraction of between 55 and 60 percent. Said test results clearly do not satisfy the criteria for a 100 percent rating, such that the appeal also fails on this basis. The Board has also reviewed the Veteran’s VA and private treatment records in assessing this appeal. Although this evidence notes his ongoing use of medication to assist with managing his disability, these records are silent for symptoms or objective test results which would merit a higher rating in this case. Id. The claims file also does not contain lay testimony or argument relevant to this appeal. In sum, the competent evidence does not indicate that the Veteran experienced myocardial infarction or congestive heart failure during the period on appeal. Objective testing also failed to establish an METs workload or left ventricular dysfunction which would correspond with the criteria for a higher rating. Accordingly, the preponderance of the evidence is against the appeal, the benefit of the doubt rule is not applicable, and the claim seeking a rating greater than 60 percent for a heart disability is hereby denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. As it pertains to both increased rating appeals, the Board has considered the Veteran’s implicit contention that higher ratings are warranted. However, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In contrast, the Veteran’s medical providers possess the requisite expertise to render opinions regarding the degree of impairment caused by his disabilities and had sufficient facts and data on which to base their conclusions.  In offering greater probative value to such opinions, it is found that the medical evidence supports the determinations offered herein In this respect, the Board also acknowledges that the above determinations are contemplative of multiple VA examinations, which were provided by medical experts; recorded the Veteran’s testimony regarding the nature and severity of his symptoms; contemplated his entire medical history as supported by competent medical evidence; and provided clear assessments in accordance with the relevant rating criteria upon contemporaneous evaluation of the Veteran. See Barr v. Nicholson,  21 Vet. App. 303, 312 (2007). Accordingly, these evaluations are found to be adequate for the purpose of assessing the merits of these appeals. TDIU The Board notes that this matter is intertwined with several of the increased rating appeals remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, given the favorable disposition of this appeal, it does not serve the Veteran’s best interests to simultaneously delay the adjudication of this appeal. Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when a veteran receives less than a total disability rating (i.e., less than a 100 percent combined disability rating) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for 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. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Veteran has met the preliminary schedular criteria for entitlement to a TDIU since April 17, 2008, when he was service-connected as follows: (1) PTSD (50 percent); and (2) myocardial infarction (30 percent). Taken in combination, these disabilities were evaluated as 70 percent disabling, such that the schedular criteria have been met since April 17, 2008. 38 C.F.R. § 4.16(a). Accordingly, entitlement may be awarded upon a finding that the Veteran’s service-connected disabilities have precluded his substantial and gainful employment since that time. The record reflects that the Veteran has a high school education, absent additional training or education. He was employed with an enclosure manufacturer until 2007. As per the Veteran’s own testimony, he was rendered unable to work full-time due to his inability to “tolerate other people.” See April 2014 VA Form 21-8940. Thereafter, the Veteran obtained part-time employment with Costco through January 2013. On this point, the record is in controversy as to the nature of the Veteran’s employment with Costco. On his VA Form 21-8940, the Veteran estimated maximum earnings of $1,000 per month, which would constitute marginal employment within the meaning of VA regulations. 38 C.F.R. § 4.16(a); Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited December 3, 2020). However, a VA Form 21-4192 received in September 2015 reflects that in the 12 months prior to the Veteran’s termination, he earned more than $18,000. Such an annual income exceeds that established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person of the Veteran’s age during the years of his employment. In considering the above, greater probative value is afforded to the September 2015 VA Form 21-4192 in assessing the nature of the Veteran’s employment with Costco. This data was provided by the Veteran’s former employer, with likely reference to employee files kept in the due course of business. In contrast, the Veteran’s representation as to his former income appears to be no more than a best estimate. Moreover, the Board notes additional conflicts between the Veteran’s recollections and his former employer’s reports regarding his occupational history, as the Veteran reported employment with Costco beginning in 2008, although the company identified a start date in November 2002. Upon such a finding, it is held that the Veteran maintained meaningful (rather than marginal) employment until January 2013, when his position with Costco was terminated. Here, the Board acknowledges a June 2020 private vocational assessment wherein the examiner repeatedly maintains that the Veteran’s position with Costco constituted marginal employment. However, the Board has contemplated the Poverty Thresholds as provided by the U.S. Census Bureau for each year of the Veteran’s employment, with specific consideration afforded to his age at each stage. Such consideration directly contradicts the examiner’s unsubstantiated classification of the Veteran’s employment as marginal, and is not sufficiently probative to overcome the Board’s analysis in this respect. However, the remainder of the June 2020 assessment stands as probative evidence in support of the claim, as the examiner—a certified rehabilitation counselor—possesses the expertise to offer a competent opinion as to the impact of the Veteran’s disabilities on his occupational functioning. Therein, the examiner provided an exhaustive overview of the Veteran’s educational, vocational, and medical histories, as supported by review of the entire VA claims file and contemporaneous interview of the Veteran. In doing so, the examiner particularly emphasized the impact of the Veteran’s PTSD on his functioning, which was impaired by such symptoms as anxiety, hypervigilance, mood disturbances, sleep impairment and related fatigue, and lack of motivation and concentration. Thus, he required assistance with most basic household chores, including shopping and cooking. These symptoms were also productive of significant occupational impairment. During the Veteran’s full-time employment with the manufacturer, he reported frequent difficulty interacting with others. As a result, he often abandoned his workstation and was ultimately reprimanded, which resulted in a verbal altercation with a human resources representative. Per the Veteran’s testimony, he resigned in 2007 following increasing periods of irritation at work, as he “did not want to hurt nobody.” See June 2020 private vocational assessment, p. 3. The Veteran continued to encounter interpersonal difficulties during his part-time tenure with Costco, during which he was involved in repeated verbal altercations with various customers. This history is corroborated by the September 2015 VA Form 21-4192, which reports that the Veteran retired “due to personal health reasons.” Upon such a disability picture, the examiner concluded that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment, including simple unskilled work, due to his disabilities. In the accompanying analysis, the examiner discussed the basic expectations of employers in the competitive labor market, to include with respect to an employee’s communication skills, concentration, and reliability. As based upon extensive treatment records, the Veteran was effectively rendered unemployable in these realms give the nature and severity of his psychiatric symptoms. Thus, given the Veteran’s limited educational background, concentration and memory impairment, and inability to maintain persistence and pace in a worklike setting, he “would be precluded from even simple, unskilled occupations” due to his inability to interact appropriate with others, remain on task, recall or carry out instructions independently, or maintain a pace consistent with industry standards. Id. at p. 8. Significant probative value is afforded to this evaluation, which was offered by a vocational expert with direct contemplation as to the Veteran’s occupational impairment due to industry demands and his psychiatric symptoms. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008)(holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). His findings are supported by additional evidence, including a series of VA examinations which document the Veteran’s physical and mental impairment. See, e.g., April 2014 VA peripheral neuropathy and sleep apnea examinations (reporting the Veteran’s inability to stand for extended periods of time and daytime fatigue/somnolence); September 2015 VA psychiatric examination (reporting functional impairment due to decreased concentration, memory, social skills, and adaptation). Critically, there are no competent opinions of record which tend to contradict the examiner’s conclusions. Thus, the collective evidence establishes that the Veteran’s service-connected disabilities preclude him from substantial and gainful employment. Most importantly, his psychiatric symptoms render him unable to function in a workplace setting due to chronic mood disturbances and social impairment. In affording the Veteran the benefit of the doubt, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation and entitlement to a TDIU from January 23, 2013 (his last known date of employment) is hereby granted. Of final note, 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, 369-370 (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 Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. Bilateral Lower Extremities The claims file currently contains April 2014 and September 2015 VA examinations relevant to the Veteran’s bilateral lower extremities. However, these examinations are inadequate upon which to assess the merits of these appeals, as they do not clearly distinguish the nerve(s) impacted by the Veteran’s disabilities. Moreover, the latter evaluation does not identify the degree of paralysis, if any, caused by the Veteran’s disabilities, despite this being an explicit criterium upon which the appeals may be granted. As such, a new examination is warranted. PTSD In a November 2019 Joint Motion for Partial Remand (JMPR) presented to the Court, the parties reiterated the Veteran’s argument that a September 2015 VA psychiatric examination was a “retrospective document [rather than] a ‘snapshot’ of [current] symptoms . . . .” See JMPR, p. 1. As such, the Veteran contended that his disability picture was worse than that captured by the 2015 examiner. In light of this argument, and considering a June 2020 private assessment which speaks to a possible worsening of the Veteran’s symptoms, a remand is warranted such that the current severity of his PTSD may be assessed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The matters are REMANDED for the following action: Schedule the Veteran for VA examinations to assess the current severity of his service-connected bilateral lower extremity neuropathies and PTSD. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests should be conducted. The examiners should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Codes 8520 or 8621 (bilateral lower extremities) and 9411 (PTSD). The neuropathy examiner must clearly identify the nerves impacted by the Veteran’s disabilities (to include whether the sciatic or external popliteal nerves are most affected). The psychiatric examiner should also consider the findings of a June 2020 private assessment. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.