Citation Nr: 21061462 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-28 516A DATE: October 4, 2021 ORDER Entitlement to an increased rating greater than 20 percent for type II diabetes mellitus (DM) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran does not require regulation of activities to manage his DM. CONCLUSION OF LAW The criteria for an increased rating greater than 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to June 1973. He appeals an April 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to TDIU and a rating greater than 20 percent for DM. In October 2019, the Board of Veterans' Appeals (Board) remanded the appeal for further development. These issues are now back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Also, when 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. See 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Diagnostic Code 7913, for DM, provides for a 20 percent evaluation where DM requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted for requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for DM requiring insulin, a 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. Further, a 100 percent disability rating will be assigned when DM requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either a progressive loss of weight and strength or complications which would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). Note (1) to Diagnostic Code 7913 provides that compensable complications of DM are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Regulation of activities is defined as the "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119, Diagnostic Code 7913. Medical evidence is required to show that occupational and recreational activities have been restricted, holding that "in order for a claimant to be entitled to a 40 [percent] disability rating, the evidence must show that it is medically necessary for a claimant to avoid strenuous occupational and recreational activities." See Camacho v. Nicholson, 21 Vet. App. 360, 363-365 (2007). Hence, a regulation of activities is a dispositive criterion to obtain a higher rating for DM in this case. Here, the preponderance of the evidence of record demonstrates that the Veteran's DM is not productive of regulation of activities and the Board finds a rating greater than 20 percent for DM is not warranted. The Veteran contends he takes insulin twice a day, is on a restricted diet, and his activities are regulated. See May 2016 notice of disagreement (NOD). The record during the appeal period corroborates that the Veteran takes insulin twice a day and is on a restricted diet; however, the medical evidence does not demonstrate it is medically necessary for the Veteran to avoid strenuous occupational and recreational activities due to his diabetes despite the evidence his symptoms and treatment increased in severity. See, e.g., August 2014, April 2016, and December 2019 VA examination reports; see also February 2016 Dr. H. letter ("his condition of DM is worsening, requiring higher dose of insulin"); February 2016 VA treatment records (uncontrolled diabetes). In fact, VA physicians have recommended the Veteran exercise and be more active. See, e.g., December 2015 VA treatment records ("advised diet, exercise and continue same treatment"); April 2016 VA treatment records ("continuing with diet and activity"). As the regulation of activities is a requirement for every rating greater than 20 percent under Diagnostic Code 7913, the Board finds the Veteran did not meet the criteria for a rating greater than 20 percent at any time during the appeal period. As a result, a disability rating greater than 20 percent is not warranted. Subject to Note (1) under DC 7913, compensable complications of diabetes are to be rated separately, unless they are part of the criteria used to support a 100 percent evaluation; whereas, noncompensable complications are considered part of the diabetic process under DC 7913. See 38 C.F.R. § 4.119, DC 7913. The Veteran is already service connected for the complications resulting from his DM, including bilateral upper and lower extremity peripheral neuropathy and erectile dysfunction. See April 2019 Rating Decision codesheet. To date, the record does not reflect any additional separate complications from his DM. Accordingly, the preponderance of the evidence is against assigning a rating greater than 20 percent during the period on appeal. REASONS FOR REMAND In February 2016, the Veteran stated he was unable to obtain and sustain employment due to his service-connected PTSD and DM with peripheral neuropathy. See February 2016 VA Form 21-8940. However, in his VA Form 21-8940, the Veteran stated he was currently working full time as a "high voltage planner" contractor. The evidence reflects the Veteran worked as an electrician during most of his career. See March 2015 VA Form 21-8940. The Veteran withdrew his claim for TDIU in April 2015 as he began full time employment in Kansas. See April 2015 VA Form 27-0820. Since that time, the Veteran noted he was laid off. See February 2016 VA treatment records. Then, in August 2016, the record reflects the Veteran had a brain tumor resection which had numerous side effects and a long recovery period. See August 2016 Southwestern Medical Center records. It is not completely clear whether the Veteran returned to the work field. In November 2019, the AOJ requested the Veteran complete a VA Form 21-8940 so VA could further develop his claim for TDIU. To date, the Veteran has not submitted this form to VA. The Veteran's representative requests the Board remand the issue of TDIU so the Veteran may receive a second opportunity to submit this form. See August 2021 IHP. Due to the fact that the Veteran is dealing with numerous serious health issues and in light of response delays caused by COVID-19, the Board will remand the matter for another attempt at development. However, the Veteran is reminded the duty to assist is not a one-way street and he should provide the AOJ with the requested evidence on remand. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim). If the Veteran has not returned to work, it is also unclear to the Board whether the Veteran's service-connected PTSD and DM with neuropathy prevented employment or whether his unemployability is solely due to the residuals of his brain tumor or other non-service-connected conditions. As the Board cannot make independent medical determinations, a remand is required to obtain an opinion regarding the Veteran's potential inability to work due solely to his service-connected disabilities. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Additionally, the Veteran indicated on his June 2017 VA Form 9 that he was disabled according to the Social Security administration (SSA) and attached the first page of his SSA notice of award. These records are not on file and could shed some light on the Veteran's claim for TDIU. On remand, the AOJ should obtain the Veteran's SSA records. See 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. Obtain all relevant updated private and VA treatment records that have not already been associated with the claims file. 2. Obtain the Veteran's Social Security Administration (SSA) records and associate them with the claims file. 3. Send the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information, a VCAA notice letter advising him of the criteria needed to substantiate a claim for TDIU, and further develop the claim for TDIU, to include obtaining any employment history records. Ensure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A are fully complied with and satisfied with respect to the issue of entitlement to TDIU. 4. After the development of #1-3 above is complete, obtain an opinion from an appropriately qualified clinician regarding the Veteran's employability and the impact of his service-connected disabilities on his employment during the appeal period. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinion should note a record review took place. The reviewing clinician should address the functional impact of the Veteran's service-connected PTSD and diabetes with peripheral neuropathy on the Veteran's ability to perform the physical and mental acts needed for employment. To the extent possible, the examiner should differentiate the impairment caused by the Veteran's service-connected disabilities as opposed to his nonservice-connected disabilities. The reviewing clinician should note the Veteran and his wife are competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above, readjudicate the claim for TDIU. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.