Citation Nr: 21063310 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 08-03 184 DATE: October 13, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with onychomycosis of the toenails, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 27, 2005 is granted. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's diabetes mellitus required only restricted diet and treatment via injection of insulin more than once a day or an oral glycemic agent during the period on appeal, without the need for regulation of activities. 2. The evidence of record demonstrates that the Veteran met the regulatory criteria for the predicate ratings for a schedular TDIU award and that his service-connected conditions prevented him from obtaining and maintaining a substantially gainful course of employment beginning the date of his increased rating claim was received on April 27, 2005; the record does not disclose a date in the year preceding his claim by which his conditions can be shown to have worsened resulting in his unemployability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II, with onychomycosis of the toenails 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 a TDIU are met effective April 27, 2005, but not earlier. 38 U.S.C. § 501; 38 C.F.R. § 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2006. In January 2012, the Veteran testified at a hearing before the Board. A transcript of the hearing is associated with the claims file. The hearing was held by a Veterans Law Judge (VLJ) who is no longer available to participate in the decision. The Veteran was offered the opportunity to testify at an additional hearing with a VLJ who would participate in the decision. The Veteran declined the opportunity for an additional hearing in May 2017. This matter has previously been before the Board on several occasions, most recently in May 2021. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). Entitlement to a disability rating in excess of 20 percent for diabetes mellitus The Veteran contends that he is entitled to a higher rating because his service-connected diabetes has led to increasing disability due to diabetic complications and due to the claimed restrictions on his activities. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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. A 100 percent rating is warranted when diabetes 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin or, depending on the time in the appeal period, an oral glycemic agent during the period on appeal. The Veteran has undergone multiple VA examinations and received multiple VA opinions during the course of this appeal, all of them have indicated that the Veteran's diabetes has not resulted in the regulation of his activities to avoid diabetic events. Indeed, a July 2019 VA medical opinion indicates that the Veteran, like most diabetes patients was encouraged to exercise as tolerated as part of his lifestyle modification to better manage his diabetes condition. The earliest evidence that the Veteran was medically required to regulate his activities due to his diabetes comes from the January 2012 Hearing testimony where the Veteran and his wife testified that managing his diabetes required the regulation of his activities and avoidance of strenuous activities. However, this testimony was not initially a clear statement that that the Veteran was required to regulate his activities due to his diabetes. Instead, it initially took the form that the Veteran was unable to do many things he previously did, then that the Veteran's heart condition caused his activities to be regulated, and then finally, after being asked the direct question if a medical provider had indicated that his activities were required to be regulated due to diabetes, the Veteran and his wife identified a medical provider who had issued that course in response to his diabetes. However, a close reading of the record demonstrates that the provider named by the Veteran submitted a Compensation and Pension (C&P) examination dated December 2011 where the examiner did not indicate that the Veteran's diabetes condition required regulation of his activities. What the provider states is that the Veteran's diabetes has an effect on his ability to work because it has caused the Veteran's obesity and generalized weakness. The provider that was named by the Veteran and his wife as instructing that the Veteran's activities should be regulated to manage or treat his diabetes did not indicate that this was the case in the C&P examination report that he completed for the Veteran only one month before the Veteran testified that this provider had prescribed regulation of activities. Thus, given the mismatch between what the provider wrote approximately one month before the Veteran's testimony and his testimony a month later, the Board finds the Veteran's testimony that his medical providers had prescribed regulation of activities to treat and manage his diabetes not to be credible. The only other place in the record where there is an indication that the Veteran is required to regulate his activities due to his diabetes is found in a March 2017 C&P examination report completed by another of the Veteran's private physicians. This physician indicates that the Veteran is required to regulate his activities as part of his diabetes control. However, this indication is not confirmed by any of the Veteran's private or VA treatment records and is contradicted repeatedly in nearly contemporaneous records encouraging the Veteran to exercise to control his weight. Additionally, as described above, a VA opinion from 2019 indicates that the Veteran's diabetes is well controlled and not placing him at risk of hypoglycemic events with exercise and that like most diabetes patients, exercise should be encouraged in the Veteran's case as part of lifestyle modification to help manage the condition. In this instance, the Board's reading of the evidence is that though there is a single incidence where a medical provider has indicated that regulation of activity is required, it is simply not persuasive in the face of the long standing evidence that the Veteran's condition does not require regulation of activities found in other private and VA treatment records, VA examinations, and examination reports submitted by other non-VA providers, and the consistent recommendations from providers encouraging exercise to help manage the Veteran's health conditions. Consequently, the Board finds that a preponderance of the evidence is against a finding that regulation of activities is required to manage the Veteran's diabetes. In the absence of the requirement of regulation of activities, a disability rating in excess of 20 percent cannot be granted for diabetes as the rating criteria is successive. Middleton, 727 F.3d at 1178. Moreover, the Veteran's VA and non-VA examination reports have all repeatedly confirmed that the Veteran's condition does not require diabetic care more than twice a month and has not resulted in hospitalizations due to hypoglycemia or ketoacidosis. Consequently, the Veteran's condition is simply not more similar to the higher ratings that would warrant a 40 percent, 60 percent, or 100 percent ratings as the rating criteria for those higher ratings contemplate disease that requires the regulation of activity, and increased frequency of diabetic care or hospitalizations which are not indicated by the record. Finally, the Board notes that the Veteran's diabetes condition has resulted in complications such as peripheral neuropathy which have been thoroughly investigated and separately service-connected, including as a result of action required by previous remands as part of this appeal. The only complication or condition associated with the Veteran's diabetes condition is the Veteran's onychomycosis, a fungal infection of the Veteran's toenails which has been treated only with topical therapy and is, as stated only present on the Veteran's toenails which constitute less than 5 percent of the Veteran's body or exposed areas, and the condition does not meet the criteria to be rated under the diagnostic codes for disfigurement. Consequently, under the appropriate rating for skin conditions, the Veteran's onychomycosis would not compensable. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, General Rating Formula For The Skin. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. Entitlement to TDIU The Veteran seeks entitlement to a total disability rating during the period preceding March 14, 2012. He maintains that his service-connected disabilities have rendered him unable to obtain or maintain a substantially gainful course of employment. The instant claim arises from the Veteran's claim received on April 27, 2005, where the Veteran sought increased ratings for his diabetes and related conditions and specifically requested entitlement to TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can actually find employment. Id. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Where the evidence shows that a veteran is unemployable by reason of service-connected disabilities, but the disability ratings assigned for those disabilities fall below the percentages set forth above, rating boards are directed to submit the claims to the Director, Compensation Service for extraschedular consideration. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Here, the Veteran meets the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a) for the entirety of the appeal period. Throughout, the appeal period from April 27, 2005, the Veteran's combined disability rating is either 90 percent or 70 percent, and he has a single disability rated at least 40 percent disabling. Prior to September 27, 2006, his coronary artery disease (CAD) was rated 60 percent disabling. On September 27, 2006, his CAD rating was decreased to 10 percent. However, prior to the decrease in his rating for his CAD, his PTSD condition was increased from 30 percent to 50 percent. Consequently, the question before the Board is whether the Veteran's condition resulted in symptoms that rendered him unable to obtain or maintain a substantially gainful course of employment. At the time, the Veteran reported that his service-connected psychiatric disability symptoms rendered him unable to work beginning in 1992. At the time that the Veteran's claim for TDIU was originally examined by VA in January 2006, his only service-connected disability was his diabetes. However, the record is clear that the Veteran's psychiatric and cardiac conditions, along with the related peripheral vascular disease symptoms in his bilateral legs, in addition to justifying a high disability rating, prevented him from obtaining and maintaining a substantially gainful course of employment. The record and VA rating actions indicate that his cardiac symptoms limited his exertions; his peripheral vascular disease resulted in pain in his legs; and even during the period where his psychiatric condition was rated only 30 percent disabling, he experienced difficulty with sleep, difficulty concentrating, irritability or outbursts of anger, and mild memory loss. This Board finds that this constellation of physical, psychiatric, and cardiac symptoms has overlapped and prevented the Veteran from obtaining and maintaining employment during the entirety of the appeal period since his claim. In reaching this decision, the Board has considered whether there is a date in the year preceding the Veteran's submission of his claim for increased ratings and TDIU increased in severity resulting in the Veteran's inability to obtain or maintain a substantially gainful course of employment. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(ii)(B) & (o)(2). However, the record indicates that the Veteran's overall disability rating was much the same in the year preceding the Veteran's submission of his claims. His total disability rating during the preceding year was 70 percent since the increase in severity of his cardiac condition more than one year earlier in February 2004, and there is not a clear indication of a discreet date on which any of the Veteran's conditions became worse during the one-year period that precedes the submission of the Veteran's claims in late April 2005. Moreover, the Veteran himself, in communications like the December 2005 statements regarding his PTSD, indicates that the Veteran's own perception is not that he became disabled from work in the year preceding his claim, but rather that his service-connected conditions were the cause of his retirement back in the 1990s. Consequently, the Board finds that entitlement to an effective date earlier than the date that the Veteran submitted his claims on April 27, 2005. Therefore, for the reasons discussed above, the Board finds that the evidence supports the Veteran's entitlement to TDIU beginning on the date his claim for increased ratings and TDIU was received, April 27, 2005, but no earlier. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.