Citation Nr: 21071470 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-03 313 DATE: November 30, 2021 ORDER Entitlement to an increased disability evaluation for diabetes mellitus with erectile dysfunction and bilateral cataracts is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's diabetes mellitus with erectile dysfunction and bilateral cataracts required an oral hypoglycemic agent and restricted diet, but not regulation of activities have not been met. 2. The Veteran's service-connected disabilities rendered him unable to engage and retain substantially gainful employment for the period from June 9, 2009 through March 28, 2018, when he was awarded a 100 percent schedular rating for non-Hodgkins lymphoma. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for diabetes mellitus with erectile dysfunction and bilateral cataracts have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). 2. The criteria for TDIU are met for the rating period from June 9, 2009 through March 28, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. army from October 1967 to October 1970. He died on August [REDACTED], 2020. The appellant is his surviving spouse. These matters come is before the Board of Veterans' Appeals (Board) on appeal of March 2007 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Before going further, the Board would like to express its sincere and deepest sympathy for the appellant's loss, the Veteran served his country proudly and well. The Board finds that the appellant, as the Veteran's surviving spouse, has been substituted for the Veteran regarding the claims of entitlement to service connection; in a November 2020 decision, the RO found that the appellant had been substituted as claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(c)(2) (2018). Consequently, remand is not required for the RO to adjudicate this question in the first instance. In September 2018, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ). And in July 2021, the Board remanded the appellant's claim to the AOJ for additional due process considerations. A supplemental statement of the case was most recently issued in August 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veteran did not raise any issues with the duty to notify or duty to assist; additionally, the appellant has not raised any issues with the duty to notify or assist since being substituted for the Veteran. 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). 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). 1. Entitlement to an increased disability evaluation for diabetes mellitus with erectile dysfunction and bilateral cataracts. The Veteran's Type-II diabetes mellitus is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. According to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet, or hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes 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 evaluated. A 100 percent rating is warranted for diabetes 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 evaluated Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran's diabetes mellitus requires an insulin and a restricted diet. The dispositive question is therefore whether it also requires regulation of activities. The Board finds that it does not. At the May 2011 and November 2011 VA examinations, the VA examiners noted, after examining the Veteran and reviewing the claims file, that the Veteran's diabetes was treated by restricted diet and insulin. Both VA examiners clearly indicated that the Veteran did not require regulation of activities. Although the treating provider that completed the July 2012 Disability Benefits Questionnaire checked the box indicating that the Veteran's diabetes mellitus required regulation of activities as part of medical management, in the provider's explanation of how the Veteran must regulate his activities, the provider indicated that increased activity would help the Veteran control his diabetes mellitus. The questionnaire did not reflect that the Veteran avoided any activities due to his diabetes mellitus. Likewise, the Board observes that treatment records indicate that the Veteran's diabetes mellitus is well controlled without regulation of activities, and that his diabetes mellitus has remained stable during the rating period on appeal. The Veteran has not needed to regulate his physical activities and has not lost any body weight due to diabetes mellitus during the appeal period. The VA examiner observed that the Veteran did not experience progressive unintentional weight loss or loss of strength due to his diabetes mellitus. As such, the Board finds that the medical evidence does not support a finding of "avoidance of strenuous occupational and recreational activities." The Veteran did not indicate that any physician had told him to regulate his activities due to his diabetes mellitus, and the Veteran's VA treatment records do not reflect that any of his treating providers told him to regulate his activities due to his diabetes mellitus. The Board acknowledges the Veteran's contentions that his diabetes mellitus has worsened. However, the weight of the evidence is against a finding that the Veteran's diabetes mellitus requires regulation of activities. As the higher ratings all require regulation of activities, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's diabetes mellitus with erectile dysfunction and bilateral cataracts. The benefit of the doubt doctrine is thus not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU 2. Entitlement to TDIU. As an initial matter, the Board notes that the Veteran's claim for TDIU was first adjudicated by the AOJ in April 2012, and that the Veteran did not provide a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) until April 2013. However, the Veteran's claim for TDIU was raised during the course of the Veteran's appeal for an increased disability rating for his diabetes mellitus and his appeal for an earlier effective date for the award of service connection for obstructive sleep apnea (which was denied by the Board in September 2018). An informal claim of entitlement to TDIU was raised in the notice of disagreement to the December 2009 rating decision on appeal, which was received by the AOJ on December 1, 2010. A TDIU claim is part and parcel of an increased rating claim being referred to the RO, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also observes that the Veteran received special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for the rating period beginning March 29, 2018 based on a single service-connected disability rated as 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent or more. Therefore, the Veteran is not eligible for TDIU for the rating period since March 29. 2018. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for a TDIU moot where 100 percent schedular rating was awarded for the same period). 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) (2020). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. The Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in April 2013. The Veteran indicated that he had two years of college and stopped working a loader for a cab company on July 7, 2010. The Veteran indicated that he stopped working due to his service-connected disabilities. The Veteran also indicated that he has not sought employment or additional training since becoming too disabled to work. The Veteran is in receipt of a 100 percent disability evaluation for follicular non-Hodgkins lymphoma, effective March 29, 2018; a 50 percent disability evaluation for obstructive sleep apnea, effective June 9, 2009; a 30 percent disability evaluation for a mood disorder, effective December 1, 2010 (previously rated as 10 percent disabling since May 19, 2009); 20 percent disability evaluations, per extremity, for peripheral neuropathy with dysesthesias of the right and left lowr extremities, effective December 1, 2010 (previously rated as 10 percent disabling per extremity since May 19, 2009); a 10 percent disability evaluation, per extremity, for peripheral neuropathy of the right and left upper extremities, effective May 28, 2010; and a 20 percent disability evaluation for diabetes mellitus with erectile dysfunction and bilateral cataracts, effective October 31, 2006. The Veteran had a combined disability evaluation of 70 percent, effective June 9, 2009; a combined disability evaluation of 80 percent, effective May 28, 2010; and a combined disability evaluation of 90 percent, effective December 1, 2010. The Veteran has a combined disability evaluation of 100 percent, effective March 29, 2018. See 38 C.F.R. § 4.25. Given that disabilities of both lower extremities and disabilities of both upper extremities are considered one disability under 38 C.F.R. § 4.16(a)(1), the Veteran met the schedular criteria for TDIU under section 4.16(a) effective June 9, 2009. 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 since June 9, 2009. The Board acknowledges that the November 2011 VA TDIU opinion found that the Veteran's service-connected disabilities did not render him unemployable because, upon evaluation, the Veteran is capable of working sedentary jobs that do not require prolonged standing or walking. The VA examiner stated that the Veteran's peripheral neuropathy of the lower extremities did not interfere with the Veteran's mobility; the Veteran was ambulatory, and his diabetes mellitus was well controlled. The Board also acknowledges that the November 2011 VA psychological examination report indicated that the Veteran's mental health, standing alone, did not render the Veteran unemployable. Nevertheless, the May 2011 VA diabetes mellitus examination report reflects that the Veteran was forced to retire in July 2010 due to his diabetes mellitus and peripheral neuropathy of the extremities. Likewise, a July 2012 Disability Benefits Questionnaire indicates that pain due to the Veteran's peripheral neuropathy interfered with the Veteran's activities. A January 2014 VA psychological examination indicates that the Veteran's depression worsened due to his chronic pain related to service-connected disabilities, and noted that the Veteran was forced to leave his job due to his service-connected disabilities. Likewise, a review of the Veteran's treatment records, and additional VA examination reports indicates that the Veteran's service-connected disabilities, in combination, are productive of symptomatology that contribute to his difficulty performing occupational tasks. In this regard, the Board notes that the Veteran's VA examination reports and treatment records indicate that the Veteran cannot stand or walk for prolonged periods or perform certain repetitive tasks, and that the Veteran experiences depression, chronic sleep impairment, and disturbances of mood and motivation due to his service-connected mood disorder. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran's contentions that he is unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the entitlement to TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. 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.