Citation Nr: 21071128 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-31 946A DATE: November 29, 2021 ORDER Entitlement to an initial compensable rating for service-connected diabetes mellitus prior to December 22, 2011, and a rating in excess of 20 percent thereafter, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's type II diabetes mellitus required neither oral hypoglycemic agent nor restricted diet prior to December 22, 2011; since that date, it requires oral medication and a restricted diet, but regulation of activities has not been demonstrated. 2. The preponderance of the evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to December 22, 2011, and a disability rating in excess of 20 percent as of that date, for type II diabetes mellitus are not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to February 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, as relevant, granted service connection for diabetes mellitus, assigning a noncompensable rating from November 30, 2010 (the date of claim). In an August 2014 rating decision, the RO increased the rating for diabetes mellitus from noncompensable to 20 percent, effective December 22, 2011. The Board remanded these matters in May 2019 to obtain outstanding treatment records and an examination for diabetes, and for any indicated further development as to the 'derivative TDIU claim'. The matters have been returned to the Board. Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diabetes Mellitus, type II The Veteran's diabetes mellitus has been assigned a 20 percent rating under Diagnostic Code 7913 beginning December 22, 2011. Prior to that time, it is rated noncompensable. Pursuant to Diagnostic Code (DC) 7913, diabetes mellitus manageable by restricted diet only is assigned a 10 percent rating. DC 7913 provides a 20 percent rating for diabetes mellitus requiring a restricted diet as well as insulin or an oral hypoglycemic agent. A 40 percent rating is provided for diabetes mellitus requiring a restricted diet, insulin, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is provided for diabetes mellitus requiring a restricted diet, insulin, 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. A 100 percent rating requires more than one daily injection of insulin, a 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. For a 40 percent rating, "regulation of activities" means "avoiding strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). The Court of Appeals for Veterans Claims (Court) held that in order for a claimant to be entitled to a 40 percent disability rating, the evidence must show that it was medically necessary for a claimant to avoid strenuous occupational and recreational activities. Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. The Court further held, "In light of the conjunctive 'and' as used in the criteria for a 40 percent disability rating under 38 C.F.R. § 4.119, DC 7913, all criteria must be met to establish entitlement to a 40 percent rating." Id. 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). Service connection is in effect for renal dysfunction associated with diabetes mellitus, rated 30 percent based on persistent albuminuria and other fact BUN, Creatinine, upper limit of creatinine testing protocol, under DC 7541. However, neither the treatment nor examination records suggest any other potential compensable complications to rate. 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's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In the 2019 remand, the Board noted that the Veteran was last afforded a VA examination for his diabetes mellitus in July 2011, and that the Veteran in 2019 had urged the disability had worsened since that time. As to the period prior to December 22, 2011, the preponderance of the evidence is against a compensable rating. First, it is uncontroverted that a December 22, 2011, VA treatment note reflects that the Veteran's A1C was high at 6.8 and that he was placed on daily Metformin for diabetes mellitus, Type II on that date. Second, the July 2011 VA examination report reflects specifically that he was on no medication nor was he on any treatment or diet therapy. It was noted that his diabetes had been discovered in April 2009 when he was hospitalized at a VA hospital for myocardial infarction. He had no trauma to the pancreas or neoplasm, was not hypertensive, and had no ketoacidosis or hypoglycemia. There was no restricted diet prior to December 22, 2011, nor was there oral hypoglycemic or other medication prior to that date. There is no other basis for a compensable rating prior to that date even suggested in the record. Any argument that a compensable rating is supported prior to December 22, 2011 is outweighed by the documented evidence that no compensable manifestations were present. The appeal as to that period of time is thus denied. As to the period beginning December 22, 2011, the preponderance of the evidence is against a rating in excess of 20 percent. In pertinent part, there is no finding of regulation of activities. A June 2019 VA diabetes disability benefits questionnaire (DBQ) was completed by a VA physician who examined the Veteran and reviewed the record. It was noted that diabetes mellitus Type II was diagnosed in 2009 and that the Veteran was taking prescribed oral hypoglycemic agent(s). The Veteran specifically does not require regulation of activities as part of medical management of diabetes mellitus. The Veteran visits his diabetic care provider for episodes of ketoacidosis and or episodes of hypoglycemia less than 2 times per month. There were no episodes of ketoacidosis or hypoglycemia that required hospitalization over the past 12 months. He did not have progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. The examiner stated that the diabetes mellitus did not impact the Veteran's ability to work. The aforementioned related but separately rated renal disease was noted. We find that VA examination highly probative as to the current manifestations of this disability as it was based on a review of the record and examination or the Veteran, and specifically addresses the relevant rating criteria. The 20 percent evaluation contemplates a requirement for insulin or an oral hypoglycemic agent and restricted diet. VA examination and treatment records dated from December 22, 2011 all reflect that the Veteran has taken oral hypoglycemic medication throughout the period at issue. His diabetes has generally been noted to require a restricted diet. However, in order to warrant a 40 percent evaluation, there must be regulation of activities. Here, there is no indication in the record that the Veteran was required to regulate his activities in order to manage his diabetes at any point. Both VA examinations and ongoing treatment records show that the Veteran has not been required to regulate his activities to manage his diabetes. We note that the Veteran reported in June 2020 that he had been routinely going to Planet Fitness to exercise until the gym was closed due to the pandemic. While he argues for a 40 percent rating generally, we find the 2019 VA examination report to be more probative as it was based on a review of the entire record. Also, the Veteran's diabetes causes no occupational impairment; there is no indication that it is actually medically necessary for him to avoid strenuous occupational and recreational activities due to his diabetes. See Camacho, 21 Vet. App. At 363. Treatment records are silent regarding avoidance of strenuous activity related to diabetes. The VA examination report suggest he does not have to avoid strenuous activity. His assertions to the contrary are outweighed and the preponderance of the evidence is against finding that the Veteran's diabetes has actually caused the Veteran to avoid strenuous occupational and recreational activities, nor is there any indication that it is medically necessary for the Veteran to regulate his activities. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent from December 22, 2011 or a compensable rating prior thereto. TDIU As explained in the 2019 Board remand, the TDIU claim was raised by the record and is related to the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). It is the established policy of 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. A finding of total disability is appropriate "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 (a)(1), 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the 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. 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 in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). "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). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman at 442). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU is denied. Although TDIU was denied in a January 2019 rating decision for failure to submit a VA form VA form 8940 (Veteran's Application for Increased Compensation Based on Unemployability) as requested, the Veteran submitted a VA form 8940 later in January 2019. In that form, the Veteran stated that his PTSD and heart disease make him unable to work since March 2009 when he stopped working as a design engineer at Trompeter/Semflex, making $50,000 annually. He had worked there since 2008. He also reported he worked as an engineer from 2003 to March 2009, making $4508.00 monthly. He listed Raytheon Aerospace Tucson, and engineering as an employer and used the date of July 2009. He reported his education level as college, three years. Accompanying correspondence from the Veteran reflects he had a first major heart attack in February 2009 and was released by his employer a few weeks later. He looked for work, but his heart history was probably a factor. He had another heart attack in March 2010 and shies away from physical activity because he worries about his heart. He has been on PTSD medication since 2010 and still goes through periods of depression where he turns off his phone and isolates for a week or so. He takes sleeping pills and naps 4 to 5 times per day. While he does indeed meet the basic schedular criteria for TDIU during the appeal period, as explained herein, the preponderance of the evidence is against his theory that service-connected disabilities preclude him from obtaining and retaining substantially gainful employment, and the claim is for this reason denied. We note that relevant to this appeal, the combined disability rating is 90 percent from October 30, 2018, 80 percent from November 30, 2010, and 60 percent from August 31, 2010. His service-connected disabilities include diabetes mellitus, rated noncompensable from November 30, 2011 and 20 percent from December 22, 2011; posttraumatic stress disorder (PTSD) rated 50 percent from November 30, 2010; ischemic heart disease, rated 60 percent from August 31, 2010; renal dysfunction, rated 30 percent from June 6, 2019; tinnitus rated 10 percent from October 30, 2018 and bilateral hearing loss, rated noncompensable from October 30, 2018. The record does not indicate that the Veteran is in receipt of Social Security Administration (SSA) benefits due to disability. VA treatment records list multiple references to him as retired, to include references dated in 2009, 2015, 2016 and 2020. In December 2015, he described himself as a retired engineer at Motorola. An April 2015 entry notes he is retired and last worked in March of 2009 as a mechanical engineer, a field he worked in for about 35 years. A completed VA form 21-4192 was not received back from the Veteran to provide information from his listed employer, Trompeter/Semflex. The Veteran reported instead in April 2019 that the company went out of business in September 2009. VA treatment records are replete with reference to treatment for these service-connected disabilities during the appeal period. We also note that it appears he did not work during the period on appeal. Contrary to what was reported on the form 8940, VA treatment records reflect that the Veteran describes physical activity consistent with the ability to obtain and sustain substantial gainful activity. Here, we note that he made reference to going to the gym until it was closed due to the pandemic in March 2020. Several references to his going to the gym to get in shape were made during the appeal period, although he did report some concerns for his heart when he felt short of breath on occasion on the treadmill. VA examinations reflect various examiner's opinions as to functional impact of his multiple service-connected disabilities. Specifically, June 2019 kidney and diabetes VA examinations reflect no functional impact on the Veteran's ability to work from his diabetes or renal dysfunction issues. A March 2019 VA heart disease examination notes functional impact inasmuch as he would be limited from working in positions requiring more than mild physical exertion. It was noted that his prior employments have included work in engineering, in a sedentary position where he operated a computer. Another prior employment included work in construction. The Veteran reported that he did the physical labor and built a house with another worker. In light of the Veteran's coronary artery disease (ischemic heart disease), he is not able to perform jobs that require more than mild exertion. The examiner found him capable of performing sedentary work which may include tasks of answering the telephone, doing paperwork, and working at a computer. A March 2019 VA PTSD examination functional impact in the workplace as follows: He can comprehend at least basic materials and instructions, he can follow directions, he can follow through with projects. He may have some tendency to work on his own, but he can at least interact with others in a professional way and interpersonally would not be a problem. He can adjust to demands in the workplace. Sleep problems may lead to some reliability concerns, but this is a mild-moderate impairment and would not preclude all types of work. Substance abuse problems are not interfering with daily functioning. He can maintain hygiene. A November 2018 VA examination for tinnitus and hearing loss notes functional impact in that tinnitus is annoying and distracting and it awakens veteran. It is necessary for Veteran to have fans or other ambient noise machines in the room in order to block out the tinnitus and sleep. Tinnitus exacerbates effects of existing hearing loss by blocking and covering important incoming speech signals. The Veteran's representative urges in October 2021 that TDIU is warranted, citing three myocardial infarctions in 2009, 2010 and in 2015. Regarding the heart examination, they note the METs level is >3-5, consistent with activities such as light yardwork (weeding), mowing lawn (power mower), brisk walking (4 mph). They also note that VA examiner reported that due to the Veteran's coronary artery disease, he is not able to perform jobs that require more than mild exertion. In sum, the Veteran certainly does have functional limitations due to his service-connected disabilities as noted on these VA examinations, which are consistent with his functional abilities reflected in the treatment record. However, overall, treatment records and examination reports reflect that the Veteran maintains a substantial level of daily functioning which, although limited consistent with his combined ratings during the appeal period, is not suggestive of inability to obtain and retain substantially gainful employment due to service-connected disability. Illustrative of this the residual functioning described by the aforementioned examiners. We again note that he was attending the gym and working out until the pandemic halted his ability to do so in 2020. Significantly, the PTSD examiner concluded that the Veteran retained the capacity to perform sustained work-type activities albeit with limitations, despite his level of PTSD. The heart examiner found that mild exertional activities were not precluded. Moreover, while tinnitus and hearing loss are noted to have functional impact, he has denied that hearing issues are a barrier to learning during treatment. See, e.g., July 2019 VA nurse note. Moreover, the lack of verification of the reason he left his job in 2009, and the characterization of his self-reported work status as 'retired' to include after a 35-year career, in the treatment record, does not bolster his claim. The record thus does not suggest that there is impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation based on the service-connected disabilities. Under the circumstances, the Board cannot find that the aforementioned manifestations of heart disease, DM, renal dysfunction, PTSD, tinnitus and hearing loss are of sufficient severity, either alone or in combination, to preclude the ability to obtain and retain substantially gainful employment. While acknowledging the Veteran's opinion that he is not able to perform work due to his combined disabilities, the Board finds the preponderance of the evidence compels the conclusion that he retains significant work abilities even in view of the challenges presented by his service-connected disabilities. In sum, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran's assertions to the contrary are outweighed by the functional capacity demonstrated in the treatment and examination record. As such, the Board concludes that entitlement to a TDIU is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.