Citation Nr: 21002326 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 08-11 863 DATE: January 13, 2021 ORDER Entitlement to service connection for a stomach disorder is denied. Entitlement to service connection for a disorder manifested by blurred vision is denied. Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an initial disability evaluation of 30 percent for coronary artery disease for the rating period prior to February 26, 2010 is granted. Entitlement to an increased, 60 percent disability evaluation for coronary artery disease for the rating period since February 26, 2010 is granted. Entitlement to an initial disability evaluation of 30 percent for nephropathy, for the rating period prior to November 15, 2017, is granted. Entitlement to an initial disability evaluation greater than 30 percent for nephropathy, for the rating period beginning on November 15, 2017, is denied. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU) is granted. REMANDED Entitlement to an increased disability evaluation for diabetes mellitus, currently rated as 20 percent disabling, is remanded. FINDINGS OF FACT 1. The Veteran’s gastritis and diverticulitis are not attributable to service. 2. The Veteran’s cataracts were not manifest in service and are not attributable to service. 3. The Veteran’s degenerative arthritis and stenosis of the lumbar spine were not manifest in service, or within one year of separation from service, and are not attributable to service. 4. The Veteran’s sleep apnea was not manifest in service and is not attributable to service. 5. For the rating period prior to February 26, 2010, the Veteran’s coronary artery disease is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue; there is no chronic congestive heart failure and the Veteran has left ventricular dysfunction with an ejection fraction of 63 percent. 6. For the rating period since February 26, 2010, the Veteran’s coronary artery disease is manifested by a workload of greater than 3 METS but not greater than 5 METS resulting in dyspnea, fatigue, and dizziness; the Veteran does not have chronic congestive heart failure, or; a workload three or left ventricular dysfunction with an ejection fraction of less than 30 percent. 7. For the entire rating period, the Veteran’s nephropathy was manifested by laboratory findings indicating the presence of hyaline and granular casts, and occult blood trace; there was no evidence of constant albuminuria with some edema, definite decrease in kidney function, or hypertension with diastolic pressure predominantly 120 or more and moderately severe symptoms. 8. The Veteran’s service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 2. The criteria for service connection for a disorder manifested by blurred vision have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 3. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 5. The criteria for a 30 percent disability evaluation for coronary artery disease for the rating period prior to February 26, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.100, 4.104, Diagnostic Codes 7017-7005 (2019). 6. The criteria for a 60 percent disability evaluation for coronary artery disease for the rating period since February 26, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.100, 4.104, Diagnostic Codes 7017-7005 (2019). 7. The criteria for a 30 percent disability evaluation, but no higher, for nephropathy for the rating period prior to November 15, 2017 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2019). 8. The criteria for a rating greater than 30 percent for nephropathy for the rating period beginning on November 15, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2019). 9. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1969 to January 1972. This case came before the Board of Veterans’ Appeals (Board) on appeal of January 2006, November 2009, June 2011, and September 2012 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2015, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In January 2016, the Board remanded the Veteran’s case to the Agency of Original Jurisdiction (AOJ) for additional development and due process considerations. In January 2019, in pertinent part, the Board denied the Veteran’s claim for an increased disability rating for diabetes mellitus. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the parties filed a Joint Motion for Partial Remand (JMPR) which requested that the Board’s decision be vacated and remanded. A July 2020 Court Order granted the motion, and remanded the claim to the Board for readjudication consistent with the terms of the Joint Motion. In January 2019, the Board also remanded the Veteran’s claims of entitlement to service connection for a lumbar spine disorder, blurred vision, sleep apnea, and a stomach disorder, as well as his claims of entitlement to increased disability evaluations for coronary artery disease, and nephropathy. A supplemental statement of the case was most recently issued in October 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a disorder manifested by blurred vision. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for sleep apnea. The Veteran does not claim, and the evidence does not reflect, that his claims are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. Based on the evidence of record, the Veteran’s claims of service connection for a stomach disorder, a lumbar spine disorder, sleep apnea, and a disorder manifested by blurred vision must be denied. The Board acknowledges that the Veteran has been diagnosed with degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts, and therefore has a current disability related to these claims. However, the evidence does not support an in service event, injury or disease or a nexus between these diagnoses and service. As to in service incurrence, here, no degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, or cataracts were “noted” or identified during service or within one year of separation. Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, or cataracts during service or within one year of separation. The Board acknowledges that the Veteran was treated for stomach cramps in April 1971, but no other treatment was noted, and no link between this single treatment and his current conditions was found on examination. Moreover, at separation, the Veteran denied experiencing joint pain and swelling, eye trouble, shortness of breath, stomach or intestinal trouble, recurrent back pain, difficulty sleeping, and arthritis; physical examination was normal. To the extent that the Veteran was noted as having refractive error upon entrance into service, this is not a disease or injury under current regulations. 38 C.F.R. § 3.303(c). There is no evidence of an injury, event, or illness related to the Veteran’s degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts/blurred vision during service; service treatment records are devoid of any complaints, treatment, or diagnoses related to the Veteran’s lumbar spine, stomach, sleep, or vision during service. Thus, there is no evidence to satisfy the first element of service connection, in service incurrence. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran’s service and the disability). In addition to the lack of an in-service event, injury or disease, the most probative evidence fails to establish a nexus between his current diagnoses and his active service. Significantly, November 2017, August 2020, and September 2020 VA examiners concluded that the Veteran’s degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts are not related to the Veteran’s service. According to the September 2020 VA medical opinions, the Veteran’s degenerative arthritis and stenosis of the lumbar spine, sleep apnea, and gastritis with diverticulitis are not likely to be related to his service given the extensive passage of time between service and his initial symptoms and diagnoses; the September 2020 VA medical opinions also noted that the Veteran did not report any relevant symptomatology or complaints during his service. The August 2020 VA examiner found that the Veteran’s cataracts were likely age-related. The November 2017 VA examiner also indicated that there was no evidence that the Veteran’s current gastrointestinal disorders were in any way related to the Veteran’s single instance of treatment for stomach cramps in 1971. In short, the November 2017, August 2020, and September 2020 VA examiners concluded that the Veteran’s degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts are not causally or etiologically related to the claimed in-service injury, event, or illness. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board has considered the Veteran’s statements. However, the Veteran’s statements are insufficient to establish that the Veteran’s degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts are related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report observable symptoms, such as stomach cramps, pain, blurred vision, and fatigue, but he is not competent to determine the cause of these symptoms or the etiology of the diagnosed disabilities. Such a determination cannot be made based on mere observational symptoms, it requires medical training and knowledge which, as a lay person, the Veteran does not have. Further, the Veteran is not competent to diagnose degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts. These disabilities require medical testing and training to diagnose. Additionally, the Board observes that records associated with the Veteran’s grant of Social Security Administration disability benefits reflect that the Veteran attributed his degenerative arthritis and stenosis of the lumbar spine to his physically demanding work as a welder, and a work-related back injury in November 1987, contradicting a link to service. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Thus, the Board finds the Veteran not competent to provide a nexus for his diagnosed disabilities. Reviewing the evidence, the Board finds that the most probative evidence is against the claims of entitlement to service connection for degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts. The Veteran’s VA treatment records, application for Social Security Administration disability benefits, and the November 2017, August 2020, and September VA medical opinions are the most probative evidence of record on nexus. The treatment records were contemporaneous to his diagnoses and provide an explanation for his symptoms, and the VA medical opinions are based on review of the record, interview of the Veteran, consideration of his lay statements as well as service treatment records, and contains a thorough rationale to support its conclusions. Accordingly, since the most probative evidence of record is against the claims, the Board finds that the claims of entitlement to service connection for degenerative arthritis and stenosis of the lumbar spine, sleep apnea, gastritis with diverticulitis, and cataracts are denied. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 5. Entitlement to an increased disability evaluation for coronary artery disease, initially rated as 10 percent disabling prior to February 26, 2010. 6. Entitlement to an increased disability evaluation for coronary artery disease, rated as 30 percent disabling for the rating period since February 26, 2010. The Veteran’s coronary artery disease is rated as 10 percent disabling for the rating period prior to February 26, 2010 and 30 percent disabling for the rating period since February 26, 2010 pursuant to 38 C.F.R. § § 4.104, Diagnostic Codes 7017 – 7005. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Codes 7005 and 7017 provide for a 10 percent evaluation for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a 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. 38 C.F.R. § § 4.104, Diagnostic Codes 7005, 7017. A note prior to the Diagnostic Code 7005 explains 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). The regulation that pertains to the evaluation of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020, contains the following provisions: (1) in all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained. (2) even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis. (3) if left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability. See 38 C.F.R. § 4.100. Prior to February 26, 2010 After a review of all the evidence, the Board finds that the Veteran’s service-connected coronary artery disease more nearly approximates the criteria for a 30 percent disability evaluation for the entire rating period on appeal. The Board finds that the Veteran’s symptoms have been relatively consistent, and that the 30 percent evaluation takes into account the Veteran’s complaints of fatigue and shortness of breath, as well as the findings of a left ventricular ejection fraction of 55 percent echocardiogram in December 2007. The December 2007 VA examination reflects interview-based METs estimate of >7 – 8. Nonetheless, the Veteran’s VA examination reports and treatment records reflect that there is no evidence of congestive heart failure, pericardial adhesions, heart valve disorders, or edema; there was also no evidence of cardiac hypertrophy or dilation. These findings are consistent with a 30 percent disability rating. The Board acknowledges that the Veteran did not explicitly meet the diagnostic criteria for a 30 percent disability evaluation prior to the February 2010 VA examination, but points out that the Veteran was not afforded a VA heart examination prior to December 2007, and no examinations were provided between December 2007 and February 2010; VA treatment records did not provide enough information to evaluate the Veteran under the relevant diagnostic criteria. Thus, to say that the Veteran did not meet diagnostic criteria for which he was not properly evaluated would defy logic. Furthermore, a finding that the Veteran’s coronary artery disease worsened on the date of the February 2010 VA examination and not in the interim time period between examinations is incongruous with the medical and lay evidence of record. In particular, the Veteran asserted that his coronary artery disease was constant throughout the entire rating period on appeal and he provided a consistent report of related symptomatology during the rating period prior to February 26, 2010. It is clear that the Veteran’s coronary artery disease worsened at some, unknown point, prior to the February 26, 2010 VA examination. As such, the Board finds that the evidence supports a finding of a 30 percent evaluation, but no higher, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7.   Since February 26, 2010 After a review of all the evidence, the Board finds that the Veteran’s service-connected coronary artery disease more nearly approximates the criteria for an increased, 60 percent disability evaluation. The Board finds that the Veteran’s symptoms have been relatively consistent, and that the 60 percent evaluation takes into account the Veteran’s complaints of fatigue and dyspnea, as well as the findings of a left ventricular ejection fraction of 63 percent in February 2010 and July 2010. The July 2010 and May 2014 interview-based METS results were estimated as > 5 – 7 METS; the May 2014 VA examination report noted a left ventricular ejection fraction of 55 percent in July 2013. In November 2017 and August 2020, the Veteran’s interview- based METS results were estimated as > 3- 5 METS, and the left ventricular ejection fraction was 55 percent in August 2020. The Board acknowledges that the Veteran has dyspnea and fatigue upon exertion. Nonetheless, the Veteran’s VA examination reports and treatment records reflect that there is no evidence of congestive heart failure, pericardial adhesions, infectious heart disorders, or edema; there was also no evidence of cardiac hypertrophy. These findings are consistent with a 60 percent disability rating. Additionally, there is no medical evidence of record indicating symptoms commensurate with a 100 percent rating. The Veteran’s complaints of difficulty with strenuous activity are accounted for in METs, which measures the impact of the Veteran’s heart condition on his ability to perform various activities. Thus, lacking competent evidence of chronic congestive heart failure, a workload less than 3 METs, or a LVEF lower than 30 percent, there is no basis to assign a 100 percent rating for the Veteran’s coronary artery disease. Nor is a separate rating warranted. The Board acknowledges that the Veteran is service connected for hypertension. However, the record does not reflect any additional symptoms or heart conditions for which a separate rating may be assigned; the Veteran does not have valvular disease. As such, the Board finds that the evidence does not support a disability rating in excess of 60 percent for coronary artery disease at any time during the appeal period. 7. Entitlement to an initial compensable disability evaluation for nephropathy for the period prior to November 15, 2017, and a rating greater than 30 percent thereafter. The Veteran's service-connected nephropathy is rated as noncompensable for the rating period prior to November 15, 2017, and 30 percent thereafter, pursuant to Diagnostic Code 7541, which directs that renal involvement in diabetes mellitus shall be rated as renal dysfunction. 38 C.F.R. § 4.115b. Renal dysfunction is rated under 38 C.F.R. § 4.115a. A noncompensable disability rating is assigned where there is albumin and casts with a history of acute nephritis; or hypertension rated as noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted where there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Under Diagnostic Code 7101, a 10 percent disability rating for hypertension is warranted when the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or where a Veteran requires continuous medication for control of hypertension. A40 percent disability rating for hypertension is warranted when diastolic pressure is predominantly 120 or more. 38 C.F.R. § 4.104 (2019). After a review of all the evidence, the Board finds that, for the entire rating period, the Veteran’s service-connected nephropathy more nearly approximates the criteria for a 30 percent disability evaluation. The Board finds that the Veteran’s symptoms have been relatively consistent, and that the 30 percent evaluation takes into account the Veteran’s renal dysfunction with persistent protein albuminuria. Moreover, the Board observes that, although the Veteran’s service-connected hypertension is rated as noncompensable, he meets the criteria for at least a 10 percent disability evaluation under Diagnostic Code 7101, as he requires continuous medication for control, and the November 15, 2017 VA hypertension examination report reflects that the Veteran has required medication for control of his hypertension since at least November 2011. However, a higher rating is not warranted. At no time during the rating period did the Veteran experience edema, a definite decrease in kidney function, hypertension at least 40 percent disabling under Diagnostic Code 7101, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, regular dialysis, or markedly decreased function of kidney or other organ systems; the November 2017 VA examination and VA and private treatment records for the rating period do not demonstrate that the Veteran has edema, a definite decrease in kidney function, hypertension at least 40 percent disabling under Diagnostic Code 7101, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, regular dialysis, or markedly decreased function of the kidney or other organ systems. As such, the Board finds that the evidence supports a finding of a 30 percent evaluation, but no higher, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. TDIU 8. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his 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. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.’ 38 C.F.R. § 4.16(a) (2019). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. As discussed above, the Veteran has been granted a 30 percent disability evaluation for his coronary artery disease for the rating period prior to February 26, 2010 and 60 percent for the rating period since February 26, 2010; he has also been granted a 30 percent disability evaluation for nephropathy, for the entire rating period on appeal (since April 27, 2012). The Veteran is also in receipt of a 30 percent for a mood disorder, a 20 percent disability evaluation for diabetes mellitus, a 30 percent disability evaluation for chronic maxillary sinusitis, a 10 percent disability evaluation for a residual scar due to coronary artery bypass graft, a 10 percent disability evaluation for dizziness, and a 10 percent disability evaluation for cerebral microvascular disease. He is also in receipt of a 30 percent disability evaluation, per lower extremity, for his service-connected polyneuropathy and 10 percent disability evaluation, per upper extremity for his service-connected carpal tunnel syndrome, as well as noncompensable disability evaluations for his service-connected hypertension, erectile dysfunction, right lower extremity scar, bilateral hypertensive retinopathy, and migraine headaches. The Board notes that special consideration is provided for cases involving both legs and arms, as is found here. To fully compensation the claimant for this type of disability, VA considers a “bilateral factor” under 38 C.F.R. § 4.26. Thereunder, the ratings for disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. 38 C.F.R. § 4.26. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. With application of the bilateral factor to the Veteran’s legs, the Board finds that the Veteran meets the schedular criteria for TDIU since September 1, 2006. VA’s General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran’s service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Veteran’s VA examinations demonstrate that the Veteran’s disabilities, in combination, reflected symptomatology that contributed to his difficulty performing occupational tasks. Additionally, the Social Security Administration decision which granted disability benefits to the Veteran indicates that the Veteran was determined to be unemployable, in part, due to the manifestations of his service-connected diabetes mellitus, cerebral microvascular disease, and hypertension. Although none of the Veteran’s service-connected disabilities, standing alone, is sufficiently severe so as to render the Veteran unemployable, the evidence demonstrates that the Veteran is unable to obtain or maintain employment due to the cumulative effects of his service-connected disabilities. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran’s contentions that he was unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantial gainful employment. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for diabetes mellitus, currently rated as 20 percent disabling, is remanded. The July 2020 JMPR remanded the Veteran’s claim for an increased disability rating for diabetes mellitus on the basis that the Board failed to provide adequate reasons or bases regarding relevant evidence. In this regard, the JMPR found that the Board’s failure to discuss the Social Security Administration (SSA) decision, wherein disability benefits were granted, in part, due to his diabetes mellitus, rendered the Board’s analysis as to whether the Veteran’s service-connected diabetes caused regulation of activities was deemed inadequate. The Board observes that Veteran was most recently afforded VA examinations in connection with his claim for an increased disability rating for diabetes mellitus in November 2017. The Board observes that the November 2017 VA diabetes examination only discussed regulation of activities in terms of physical exercise and did not address the impact of the Veteran’s diabetes mellitus on his activities of daily living, to include employment. As such, the Veteran must be provided with examinations which consider the current severity of his service-connected disabilities on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The matters are REMANDED for the following action: 1. The Veteran should be provided VA diabetes mellitus examination in order to evaluate the Veteran’s current severity and manifestations of the service-connected diabetes mellitus. The claims file should be made available to the examiner for review in connection with the examination. The examination report should include a statement as to the effect of the service-connected diabetes mellitus on his occupational functioning and daily activities. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 2. After completing all indicated development, the RO should readjudicate the Veteran’s claim for an increased disability rating for service-connected diabetes mellitus. If these benefits are not granted, the Veteran must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.