Citation Nr: 21066622 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-10 308 DATE: November 1, 2021 ORDER An increased disability rating higher than 20 percent for the service-connected diabetes mellitus type II for the entire rating period is denied. Referral to the VA Director of the Compensation Service for consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 14, 2012 to April 23, 2021 is denied. A TDIU from April 23, 2021, forward, is denied. FINDINGS OF FACT 1. For the increased rating period from December 14, 2012, management of diabetes mellitus type II required the use of an oral hypoglycemic agent and a restricted diet with no regulation of activities. 2. From December 14, 2012 to April 23, 2021, unemployability due to service-connected disabilities was not sufficiently suggested to warrant referral to the VA Director of the Compensation Service for consideration of a TDIU under § 4.16(b). 3. From April 23, 2021, forward, the service-connected disabilities have not been sufficiently incapacitating to prevent the Veteran from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating higher than 20 percent for service-connected diabetes mellitus type II are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for referral to the Director of the Compensation Service for consideration of a TDIU under 38 C.F.R. § 4.16(b) have not been met from December 14, 2012 to April 23, 2021. 38 U.S.C. §§ 1155, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. 3. The criteria for the award of a TDIU have not been met from April 23, 2021, forward. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1964 to August 1969. This matter is on appeal from an April 2015 rating decision. In January 2019, the Board denied service connection for a back disability, an increased rating higher than 20 percent for diabetes mellitus type II, and a TDIU. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court or CAVC). In a July 2020 Memorandum Decision, the Court vacated the portion of the Board's decision denying an increased rating for diabetes mellitus and a TDIU on the basis that the Board did not consider the Veteran's February 2017 assertion of worsening of diabetes mellitus. The Court also vacated the TDIU issue as an intertwined claim. The Court affirmed the portion of the Board decision denying service connection for a back disability. In April 2021, the Board remanded the appeal for a VA examination to help determine the current severity of diabetes mellitus. Because the collective April and May 2021 VA examinations and July 2021 and August 2021 addendums were adequate in determining the current severity of diabetes mellitus type II, the Board finds that there was compliance with the prior remand directives. The representative has argued that the April and May 2021 VA examinations were inadequate because the examiners lacked expertise in neurology and nephrology and no medical opinion was provided on the combined effect of the service-connected disabilities; however, the argument is not persuasive. Both VA examiners had medical expertise and training sufficient to determine the severity of diabetes mellitus, to include complications related thereto. The April 2021 VA examiner who has medical training and expertise as a nurse practitioner reviewed the record, interviewed and examined the Veteran, and opined that the Veteran had diabetic neuropathy of the lower extremities, which resulted in a grant of separate 10 percent ratings for each extremity. The July 2021 VA examiner who has medical training and expertise as a family practitioner reviewed the record and interviewed the Veteran and opined that the Veteran had diabetic nephropathy, which resulted in a grant of a separate 60 percent rating for nephropathy. Additionally, no medical opinion on the combined effect of the service-connected disabilities is needed because the evidence of record sufficiently describes the symptoms and functional limitations of each service-connected disability. There is adequate lay and medical information of record to decide whether the Veteran is unemployable due to impairment caused by service-connected disabilities. In this case, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied by way of the May 2014 notice letter. The VCAA duty to assist has been met in this case. The complete service treatment records and all identified post-service treatment records are associated with the record. VA examinations were provided in April and May 2021, with addendum opinions provided in July and August 2021. 1. An increased disability rating higher than 20 percent for diabetes mellitus type II is denied. Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, for the entire increased rating period from December 14, 2012, diabetes mellitus type II is rated at 20 percent under the criteria at 38 C.F.R. § 4.118, DC 7913. Under DC 7913, diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. Diabetes mellitus requiring 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 rated, is rated at 100 percent. See 38 C.F.R. § 4.118, DC 7913. "Successive" rating criteria are where the rating for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). Note (1) to DC 7913 provides that compensable complications of diabetes mellitus 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. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that management of diabetes mellitus requires regulation of activities such that the criteria for a rating higher than 20 percent under DC 7913 are met or more nearly approximated at any time during the rating period. Throughout the rating period, management of diabetes mellitus type II has required the use of an oral hypoglycemic agent and a restricted diet. The evidence shows that management of diabetes mellitus has not also required avoidance of strenuous occupational and recreational activities, that is, regulation of activities, at any time during the rating period. Although the Veteran has reported that management of diabetes mellitus also required a regulation of activities during the rating period, the weight of the evidence shows no such restrictions. Rather, it shows that the Veteran has been encouraged to increase his physical activity, not avoid strenuous activities; therefore, the Veteran's report of regulation of activities due to diabetes mellitus is not deemed credible, so is of no probative value. See, e.g., December 2013 VA diabetic retinopathy surveillance consultation note (noting that the benefits of exercise for diabetes was discussed with the Veteran and he was encouraged to increase physical activity to limit complications associated with diabetes). Because the weight of the evidence is against finding that management of diabetes mellitus requires a regulation of activities for the entire rating period, which is a manifestation and/or level of impairment required for a 40 percent schedular rating for diabetes mellitus under DC 7913, the schedular criteria for a disability rating higher than 20 percent for diabetes mellitus under DC 7913 are neither met nor more nearly approximated at any time during the increased rating period; therefore, the increased rating appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Complications of Diabetes Mellitus Type II During the appeal, separate 10 percent ratings for diabetic neuropathy of the left and right lower extremities and a separate 60 percent rating for diabetic nephropathy were awarded effective from April 23, 2021, the date of the April 2021 VA examination. See May 2021 and August 2021 rating decisions. After review of the record, the Board finds that no separate, compensable ratings for diabetic complications, including diabetic neuropathy or nephropathy, are warranted prior to April 23, 2021 because the evidence did not establish complications due to diabetes mellitus prior to the April 23, 2021 VA examination. See, e.g., April 2015 VA examination report (opining that there was no diagnosis of diabetic neuropathy while attributing the report of intermittent burning and itching in the feet to left lower extremity radiculopathy due to a nonservice-connected back disability and noting that there was no evidence of nephropathy because renal function labs were normal). The Board finds that neither the Veteran nor the record has raised the issue of an extraschedular rating for the increased rating appeal, and all the reported and actual symptoms and impairment associated with the diabetes are contemplated and rated under the schedular rating criteria. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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). 2. Referral for consideration of a TDIU from December 14, 2012 to April 23, 2021 is denied. 3. A TDIU from April 23, 2021 is denied. TDIU Legal Authority Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the 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. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in deciding on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU Analysis For the entire TDIU rating period from December 14, 2012, the Veteran is service connected for diabetic nephropathy, rated at 60 percent effective from April 23, 2021; PTSD, rated at 30 percent; diabetes mellitus type II, rated at 20 percent; peripheral neuropathy of the left lower extremity, rated at 10 percent effective from April 23, 2021; and peripheral neuropathy of the right lower extremity, rated at 10 percent effective from April 23, 2021. The combined disability rating is 40 percent from December 14, 2012 to April 23, 2021, and 80 percent thereafter. From December 14, 2012 to April 23, 2021, the Veteran has two or more service-connected disabilities (i.e., PTSD and diabetes mellitus type II) but has no service-connected disability rated at 40 percent or higher, and the combined rating for the service-connected disabilities is less than 70 percent (i.e., 40 percent); therefore, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are not met for the period. From April 23, 2021, forward, the Veteran has two or more service-connected disabilities with one service-connected disability rated at 40 percent or higher (i.e., diabetic nephropathy rated at 60 percent), and the combined rating for the service-connected disabilities is 70 percent or greater (i.e., 80 percent); therefore, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for this period. After review of all the lay and medical evidence of record, the Board finds that the criteria for a TDIU are not met or approximated for any period. In this case, the Veteran has two years of college education and past work experience at an automotive manufacturing plant for 16 years before retiring in July 2007. Other past work experience included work as a corrections guard for 10 years, a police officer for three years, and a lamp factory worker for one year, and a counselor with developmentally disabled children for 16 years. He reportedly has not worked since retiring in July 2007. Throughout the entire TDIU rating period from December 14, 2012, forward, PTSD was manifested by anxiety, suspiciousness, chronic sleep impairment, irritability or outbursts of anger, flattened affect, and some difficulty with work relationships (i.e., reportedly had difficulty working around Laotian workers). Management of diabetes mellitus type II required the use of an oral hypoglycemic agent and a restricted diet with no regulation of activities. Additionally, from April 23, 2021, forward, peripheral neuropathy of the lower extremities was manifested by mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the lower extremities, decreased sensation in the lower extremities to include the ankles and feet, with less than normal strength in the lower extremities, and decreased ankle reflexes bilaterally. The Veteran also has diabetic nephropathy manifested by no symptoms or impairment other than an abnormal lab result suggestive of renal failure and no treatment. The Veteran has reported that his past work experience at an automotive manufacturing plant primarily involved solitary work so the psychiatric symptoms and impairment would likely have little impact on ability to perform such work. While management of diabetes mellitus would require a restricted diet and use of a prescribed oral hypoglycemic agent, such management would not significantly interfere with the ability to perform past work at an automotive manufacturing plant. The evidence also shows that the Veteran was unable to walk on uneven surfaces and up and down inclines due to peripheral neuropathy of the lower extremities; however, it is unlikely that such functional limitations would significantly impact the Veteran's ability to perform his past work at an automotive manufacturing plant because walking uneven surfaces is not likely to be a common occurrence when performing the duties of the work. The evidence has demonstrated no occupational or functional limitations due to diabetic nephropathy with no symptoms or treatment despite the August 2021 laboratory result suggesting renal failure. After considering limitations related to the service-connected disabilities as shown by the credible lay and medical evidence, the Board finds that the Veteran has not been precluded from performing the type of work for which he had prior work experience for the entire TDIU rating period when considering the symptomatology and functional impairment of service-connected disability alone, without regard to age or nonservice-connected disabilities. For the foregoing reasons, service-connected disabilities, either individually or collectively, were not sufficiently incapacitating to preclude substantially gainful employment for the TDIU rating period at issue. For these reasons, the Board finds that the evidence does not suggest that the service-connected disabilities rendered the Veteran unemployable to warrant referral of a TDIU under § 4.16(b) from December 14, 2012 to April 23, 2021. Additionally, the Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment solely due to the service-connected disabilities to warrant a TDIU from April 23, 2021, forward; therefore, the TDIU appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.