Citation Nr: 21001874 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-41 016A DATE: January 12, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II, with onychomycosis bilateral fingernails and toes, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required only restricted diet, daily injection of insulin, and the use of oral glycemic agents during the period on appeal. 2. The service-connected disabilities do not preclude substantially gainful employment consistent with the Veteran’s education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability 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, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1984. In February 2019, the Veteran appeared at a Board hearing and testified before the undersigned Veterans Law Judge. This matter was remanded for additional development in January 2020. 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings. When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran contends that the Veteran’s diabetes mellitus, type II is more disabling than contemplated by the 20 percent evaluation. During the February 2019 Board hearing, the Veteran stated the Veteran’s diabetes mellitus, type II required regulation of his activities. The Veteran’s service-connected diabetes mellitus, type II, was evaluated under Diagnostic Code 7913. Diabetes mellitus requiring insulin and restricted diet or use of an oral hypoglycemic agent and a restricted diet, is assigned a 20 percent disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Diabetes mellitus requiring 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, is assigned a 60 percent disability rating. 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 disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. In addition, compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). As discussed above, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require insulin, a restricted diet, and regulation of activities. These criteria are conjunctive; all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). As to regulation of activities, it must be medically necessary for the veteran to have a “regulation of activities.” Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The veteran must have been “instructed to avoid strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 364. June 2013, July 2015, and September 2020 VA diabetes mellitus examination reports show a diagnosis of diabetes mellitus type II. The Veteran's medical history indicated treatment that included restricted diet, oral hypoglycemic agents, and insulin injection more than once per day. In the 2015 and 2020 VA examination reports, the examiner found that regulation of activities was not part of the medical management of his diabetes. Regulation of activities as part of medical management of diabetes mellitus was not prescribed. Frequency of diabetic care for episodes of ketoacidosis and hypoglycemia were less than 2 times per month. No episodes of hospitalization for ketoacidosis or hypoglycemic reactions were noted. Loss of strength and weight were not noted. Complications of diabetes mellitus type II were noted as diabetic peripheral neuropathy. The examiner noted that the Veteran's diabetes mellitus type II did not impact his ability to work. A review of the Veteran's VA and private treatment records do not show that the Veteran has been prescribed regulation of activities as part of medical management for diabetes mellitus type II. The Board finds that the Veteran's diabetes mellitus required only restricted diet, one or more daily injections of insulin, and oral glycemic agent during the period on appeal. The VA examination report of record, as well as the Veteran's private and VA medical records, confirm that regulation of activity is not prescribed for treatment. The Veteran is competent to report his diabetes causes a reduction in activities and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required and prescribed by VA or private medical personnel during the period on appeal. Furthermore, as supported by the 2020 VA examination report, the Veteran’s onychomycosis manifests in yellow and brittle fingernails and toenails that requires over the counter topical medications. It does not, however, include more than 5 percent of the body surface area, require systemic therapy, or any other therapy. Thus, a separate evaluation for this disability is not warranted. The Board notes that the Veteran is already service connected for other complications of diabetes, which are diabetic peripheral neuropathy and peripheral vascular disease, however, the Veteran has not expressed disagreement with the ratings assigned pertaining to those disabilities. In addition, the Veteran does not assert, nor does the record show, that he has any other complications of diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal for diabetes mellitus type II. 2. Entitlement to a TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Under 4.16(a)(2) disabilities resulting from a common etiology are considered one disability for purposes of TDIU. Here, as of 2013, the Veteran’s service-connected diabetes mellitus, bilateral lower extremity peripheral neuropathy, and bilateral upper extremity peripheral neuropathy, are considered common etiology and are evaluated as 40 percent together. With the remainder of the Veteran’s service-connected disabilities, the combined rating is 70 percent. Therefore, the Veteran meets the criteria for consideration of schedular TDIU. A February 2015 application for increased compensation based on unemployability shows that the Veteran last reported working full time in 1997. The Veteran noted that he could not provide a work history for the last 5 years as he was incarcerated. The Veteran was noted to have completed his GED and had training as an equipment repairmen. A December 2014 VA treatment record the Veteran reported that he was interested in working in the IT field and had completed his GED. July 2015 VA diabetic peripheral neuropathy and diabetes mellitus examination reports shows that the examiner determined the disability would impact his ability to work. The examiner noted that the Veteran was retired but the he reported symptoms of peripheral neuropathy will reduce work efficiency if employed. Diabetes was noted not to impact the Veteran’s ability work. The Veteran reported mild reduction in grip strength and dexterity over the years but was fully functional for activities of daily living. Mild imbalance when walking was reported but he was able to walk unassisted. He did use a cane due to knee and low back pain. Examination noted normal grip and pinch strength. A July 2017 VA diabetic peripheral neuropathy examination report shows that the examiner noted that the disability would impact his ability to work. The Veteran noted that he was retired and could lift a 16 ounce water bottle but could lift 1 pound of an object off the floor rarely. Examination showed that the Veteran was assessed with 5/5 strength for grips and pinch. 4/5 was assessed for elbow flexion and extension, and wrist flexion and extension. A July 2017 VA back examination report shows that the Veteran reported he could participate in activity of going to the VA hospital, parole office, and grocery store. He reported that he could walk 20 yards with a rolling walker. He also reported that he could do his own house chores at his own pace. He reported difficulty with lifting and difficulty with ambulation without a rolling walker. In February 2019, the Veteran testified before the undersigned that he was trained as a heavy equipment repairman during active service and that he was last employed in 1997. The Veteran reported that he could not work in that field currently due to his disabilities, and that he could only get a job as a dishwasher, but would have to sit down to take breaks, and therefore he would not get hired. The Veteran reported that he could not work at a desk job because he would have to take a break every 15 minutes due to back pain and could not type due to arthritis in his hands. The Veteran also reported that he has applied for a job as mechanic but has been told that he was overqualified. The Veteran also reported that he had to give up working with tools due to ligaments deteriorating in his hands and arthritis. A September 2020 VA peripheral vascular disease examiner found that the disease did not impact the Veteran’s ability to work. September 2020 VA diabetic and sensory examination reports shows that the disability had no impact of the Veteran’s ability to work. Strength testing for the bilateral extremities were noted as 5/5 to include pinch and grip testing. The examiner also noted that sensation was entirely intact except for a slight decrease in light touch of the bilateral feet. There were also normal upper and lower reflexes. After a review of the record, which includes the Veteran’s VA treatment records, Board hearing testimony, and educational and work history, when taken in total, does not support a finding that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. Here the VA examination report of record show that while he has service connected disabilities to diabetes mellitus type II, and related complications, and his back disability do cause some impairment, none of the findings by the VA examiner’s contain descriptions of impairments severe enough to prevent the Veteran from gainful and sustain employment and such impairments were noted to be mild. Most importantly, the Veteran’s own testimony in September 2019 show that he was prevented from finding employment as a mechanic, which was his previous career, due to impairment caused by arthritis affecting his hands. However, the Veteran is not service connected for arthritis of the hands, and as such, this disability cannot be considered to warrant a TDIU. The Board notes that the Veteran’s prior employment is not sedentary and the Veteran’s orthopedic and sensory disabilities would create limitations in this regard. Although his diabetes mellitus with related complications and low back and shoulder disabilities undoubtedly produces impairment, the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities and his claim for entitlement to TDIU is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.