Citation Nr: 21005630 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-54 928 DATE: February 2, 2021 ORDER Service connection for diabetic retinopathy of the right eye is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to the diabetic process alone is granted. Entitlement to special monthly compensation (SMC) at the housebound rate pursuant to 38 U.S.C. § 1114(s) is denied. REMANDED Entitlement to a rating in excess of 60 percent for diabetic nephrology is remanded. FINDINGS OF FACT 1. The diabetes has resulted in occasional diabetic retinopathy of the right eye; the Veteran does not have diabetic retinopathy of the left eye. 2. The manifestations of the Veteran’s diabetes render him unable to work. 3. The Veteran does not have a single disability rated at 100 percent and an additional disability rated at 60 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetic retinopathy of the right eye have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 2. The criteria for a TDIU rating due to the manifestations of the Veteran’s diabetes are met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) and (b) (2018). 3. The criteria for SMC at the housebound rate have not been met. 38 U.S.C. § 1114(s); 38 U.S.C. § 1114(s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to March 1971. In April 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. This matter was previously before the Board, most recently in April 2020 when the aforementioned issues and the issue of entitlement to service connection for erectile dysfunction was remanded for additional development. In an October 2020 decision, VA granted service connection for erectile dysfunction. Diabetic Retinopathy A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Diagnostic Code 7913, which rates diabetes mellitus, states that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating and noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. November 2010 and March and August 2011 private treatment records report that the Veteran did not have retinopathy. An October 2011 VA teleretinal scan showed moderate nonproliferative diabetic retinopathy in the right eye and no diabetic retinopathy in the left eye. The record indicates that there was no examination in conjunction with the teleretinal screening. February 2012, February 2013, and January 2014 VA optometry records report that the Veteran did not have retinopathy. A January 9, 2015, VA optometry record reveals diagnosis of mild nonproliferative diabetic retinopathy in the right eye and no retinopathy in the left eye. A December 2015 VA diabetes examination record reports a diagnosis of diabetic retinopathy. A January 2016 VA eye examination record reports diagnosis of nonproliferative diabetic retinopathy in March 2015. The record states that the Veteran was examined on March 9, 2015, and that the examination noted isolated hemorrhage of the right eye, most likely attributable to trace diabetic retinopathy. Examination did not reveal retinopathy. February, April and November 2016 VA optometry records reports that there was no retinopathy in either eye. A May 2017 VA optometry record reports that there was no retinopathy in either eye. A June 2018 VA optometry record reports that the Veteran did not have retinopathy. An August 2018 VA examination record indicates that the Veteran did not have a retina condition. An August 2020 VA examination record reveals the determination that the Veteran did not have ocular complications of diabetes. The examiner explained that there was no sign of active diabetic retinopathy. The examiner noted that the Veteran had good control of his diabetes, which helped the diabetic retinopathy resolve. The evidence reveals clinical findings of no retinopathy in the left eye. However, there are findings of diabetic retinopathy in the right eye, including on examination in January 2015, and resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for diabetic retinopathy of the right eye. In making this determination, the Board makes no conclusions about entitlement to a separate rating for the diabetic retinopathy of the right eye. 38 C.F.R. § 4.119, Diagnostic Code 7913. SMC VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim”). In relevant part, SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A total disability rating based on individual unemployability (TDIU) can satisfy the need for a rating of 100 percent under section 1114(s) where a separate disability, by itself, creates the basis for an award of a TDIU. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). A TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. Id. Although the caselaw establishes that multiple disabilities arising from a single accident would not satisfy the requirement for a single disability rated 100 percent, it has not considered the situation where multiple ratings have been provided for the various manifestations of a single disease. Bradley, 22 Vet. App. at 290-1. There is no regulatory guidance or court precedent to indicate that the different manifestations of a single disease process that have been given multiple ratings would not be considered a “service-connected disability rated total.” Accordingly, the Board views the Veteran’s diabetes mellitus and its associated manifestations as a “single disability” for SMC purposes. A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Service connection is in effect for diabetic nephrology, posttraumatic stress disorder, peripheral neuropathy of each extremity, diabetes, erectile dysfunction, and diabetic retinopathy. In a December 2018 decision, the Board granted a total disability rating based on individual unemployability (TDIU) due to the diabetic neuropathies and psychiatric disability. However, the Board did not address whether TDIU might be warranted based on a single disability and thus entitle the Veteran to SMC pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.40(i). Resolving all doubt in favor of the Veteran, the Board finds a TDIU is warranted based on the evidence that the diabetes and associated manifestations, particularly the neuropathies, would significantly impair the Veteran’s previous occupation as a painter. As discussed above, the Board finds this satisfies the requirement for a single total rating for SMC purposes. However, the “other” service-connected disabilities (i.e. those other than the diabetes and associated manifestations) are not independently rated at least 60 percent or greater. Thus, SMC is not warranted on this basis. The probative evidence does not suggest that a disease other than the diabetes and associated manifestations singularly rendered the Veteran unemployable. Notably, the Board finds the service-connected psychiatric disability has not rendered the Veteran unable to obtain or maintain substantially gainful employment so that referral would be warranted. May 2013 and July 2017 VA examination records reveal determinations that the psychiatric disability would result in mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and the July 2017 VA examination record reveals the Veteran’s history that he would be able to work but for his physical problems. The Board notes that the May 2013 VA examination determined the Veteran was capable of managing his financial affairs. A July 2020 VA examination record reveals the finding that the psychiatric disability would result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The record reveals the Veteran’s history that he went to trade school for machinery and worked 32 years with a “few problems” with supervisors and no problems with coworkers. The examiner reported that given long-term stable employment, the Veteran would have no more difficulty than same age peers with understanding, remembering, and carrying out instructions or maintaining concentration and persistence with simple tasks. The examiner stated that depending on the amount of contact with supervisors and coworkers, the Veteran should be able to respond appropriately to supervision and coworkers and that the Veteran should be able to respond appropriately to work pressure so long as walking away is an option. The Board acknowledges that an August 1, 2011, medical statement reports that the Veteran had “severe” symptoms which “cost” the Veteran “a good job.” The record indicates that this statement was based in part on medical evaluation in August 2009, however, which predates the appeal and that reveals symptoms more severe than those reported as of August 1, 2011 or thereafter. The August 1, 2011, evaluation records report reveals findings that the Veteran was well-groomed with appropriate affect and attitude, normal speech, intact thought process, and no suicidal or homicidal thoughts. The Veteran showed impaired concentration but was able to regain focus with direction. Although the examiner determined the Veteran’s psychiatric disability was severe, the examiner also assigned Global Assessment of Functioning (GAF) scores of 58 and 61, which correspond to mild to moderate impairment in functioning. Based on the significant discrepancy between the assessment and GAF scores, which were all assigned on the same date by the same person, and in light of the reliance on symptoms and findings shown only prior to the appeal period (such as impaired impulse control and suicidal ideation), the Board finds the August 1, 2011, medical statement and findings of severe impairment are of limited probative value. Review of the record reveals the Veteran’s history that his psychiatric disability resulted in little to no impairment of his job and that he could work if he did not have his physical disability. These histories are consistent with the VA examiners’ determinations, and the Board finds the psychiatric disability would not render the Veteran unemployable as a painter. In making this determination, the Board notes that it is precluded from considering the Veteran’s age in determining employability. The record also does not suggest unemployability from any other service-connected disability. Thus, SMC is not warranted on this basis. Additionally, the evidence does not show that the Veteran is substantially confined to his dwelling and immediate premises as a result of his service-connected disabilities. Thus, SMC is not warranted on this basis. In sum, the Board finds that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and SMC at the housebound rates is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds an addendum opinion is needed from the October 2020 VA examiner. The examiner reported that the Veteran had stage 3 diabetic nephropathy and the Board interprets the follow-up statements as indicating that stage 3 diabetic nephropathy results in feeling tired and weak and difficulty sleeping. However, when asked to check all applicable symptoms due to renal dysfunction, the examiner did not check weakness. Although “feeling weak” could be distinct from actual weakness, the Board finds the record would benefit if this were clarified. The matters are REMANDED for the following action: Provide the claims file to the October 2020 VA examiner (or if unavailable an appropriate medical professional). After review, the medical professional should clarify the potential discrepancy between the medical statement and the answers in Section III, question 3B. The examiner should provide an explanation for any comments provided. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.