Citation Nr: 21007150 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 20-30 282 DATE: February 8, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II (DM), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to February 12, 2013, is denied. FINDINGS OF FACT 1. The management of the Veteran’s DM has not required regulation of activities at any time during the appeal period. 2. The Veteran’s service-connected disabilities have not precluded him from securing or maintaining substantially gainful employment prior to February 12, 2013. He was rated 100 percent for prostate cancer from March 2010, the date of claim for VA benefits. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a TDIU, prior to February 12, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the appeal in April 2018 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).  In September 2020, the Veteran submitted his VA Form 9, checking that he does not want an optional Board hearing. However, in his statement attached to the form the Veteran requested a “meeting for evidence presented to the Board.” The Board sent a hearing clarification letter to the Veteran in December 2020. This letter notified the Veteran that he had 30 days to respond, and if no response was received within 30 days, the Board would conclude that he did not desire a hearing. The Board notes that no response was received within 30 days of the hearing clarification letter. Thus, as all due process requirements have been met, the Board will proceed to adjudication of the case based on the current evidence of record. Pursuant to 38 C.F.R. § 20.900(c), the Veteran’s appeal has been advanced on the docket.  38 U.S.C. § 7107(a)(2).  1. Entitlement to an initial rating in excess of 20 percent for DM. The Veteran seeks a rating in excess of 20 percent for his DM. The appeal period before the Board begins on March 30, 2010, the date of the claim for service connection. The Board notes that service connection for DM was initially awarded in a January 2013 rating decision. Ratings of 10 percent effective March 30, 2010 and 20 percent effective May 23, 2012 were assigned. The Veteran did not appeal that decision. However, the Veteran underwent a VA examination in February 2013 to determine the nature and severity of his DM. As such, the Board finds that the RO constructively received new and material evidence within one year of the issuance of the January 2013 rating decision. Thus, as the January 2013 rating decision did not become final the instant matter has been recharacterized as an initial rating claim pursuant to 38 C.F.R. § 3.156(b). Subsequent ratings have assigned the 20 percent rating effective to March 2010, the date of the claim for service connection. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s DM is rated at 20 percent pursuant to DC 7913. 38 C.F.R. § 4.119. According to DC 7913, a 20 percent rating is assigned for DM requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for DM requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is assigned for DM that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least one or 2 hospitalizations per year or twice a month visits to a DM care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 separated evaluated. 38 C.F.R. § 4.119, DC 7913. Because the criteria are joined by an “and,” a claimant is required to demonstrate that all the criteria listed for a 40 percent rating are met. Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007). Therefore, a 40 percent rating is not assignable under DC 7913 if the Veteran meets all the 20 percent criteria, but only 2 of the 3 criteria at the 40 percent level. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The DC for DM is successive because each higher rating requires the elements of the lower evaluation. See Camacho, supra. The phrase “regulation of activities” is defined in DC 7913 as “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to support the “regulation of activities” criterion. 38 C.F.R. § 4.119, DC 7913; Camacho, supra. In the present case, the Veteran underwent a VA examination for his DM in February 2013, November 2015 and March 2020. In all three instances, the examiners reported that the Veteran’s DM was treated with a restricted diet, oral hypoglycemic agent (except for February 2013 VA examination) and insulin injections. The examiners all noted that the Veteran does not require regulation of activities as part of his medical management of DM. The examiners also reported that the Veteran has diabetic peripheral neuropathy and retinopathy complications associated with his DM. The Veteran was previously granted service connection for peripheral neuropathy and retinopathy secondary to his DM, and that issue is not on appeal. There are otherwise no complications of DM that have not already been recognized. Further, the Veteran’s VA treatment records from 2010 through 2019 note that the Veteran’s DM is mostly diet controlled. The records also note that his DM is controlled with medication and insulin injections. The regulation of activities is not shown. The contentions of the Veteran’s and his representative, arguing that he is entitled to a higher rating for his DM, are acknowledged. See Veteran’s September 2020 Statement; November 2020 Informal Hearing Presentation. Specifically, the Veteran asserts that his DM is more severe, and the number of his daily insulin injections increased. However, the VA examinations and treatment records do not indicate that regulation of activities has been prescribed by a doctor in order to control his DM. The medical evidence does not support the Veteran’s contentions and is of more probative value in establishing the presence of doctor prescribed regulation of activities. In addition, at August 2016 Board hearing, the Veteran testified that his doctor has not limited his activities but claimed that he himself has. The Board notes that to warrant a higher rating, regulation of activities must be prescribed by a doctor. In light of the foregoing, the Board finds that a higher 40 percent rating is not warranted. There is no evidence to suggest that regulation of activities is required to manage the Veteran’s DM. The evidence of record shows that the Veteran’s DM only requires management with a restricted diet, oral hypoglycemic agent and insulin injections. Thus, there is no doubt to be resolved and a rating in excess of 20 percent must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.119, DC 7913. 2. Entitlement to a TDIU prior to February 12, 2013. A claim for TDIU is raised by the evidence of record. See October 2015 VA Form 21-8940 (VA 21-8940) (asserting that the Veteran’s service-connected disabilities render him unable to secure or follow any substantially gainful occupation). Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the reasons that follow, the Board finds that the Veteran’s service-connected disabilities did not render him unable to obtain or maintain a substantially gainful occupation prior to February 12, 2013. As described in detail below, recent ratings have assigned a TDIU effective February 12, 2013. This was said to be the date it was shown entitlement was established. The Veteran had a 100 percent rating for prostate cancer assigned from the date of the claim for VA benefits in March 2010, and that is the period that remains at issue. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Additionally, entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019).  Thus, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  The phrase “unable to secure and follow a substantially gainful occupation” in 4.16 has both an economic and a noneconomic component.  Ray, supra. The economic component means an occupation earning more than marginal income outside of a protected environment. Id.  The noneconomic component concerns whether the Veteran is able to “secure or follow” gainful employment.  Id.  In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran’s history, education, skill, and training, the Board should consider whether he or she “has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required” to work in a substantially gainful occupation, and “whether the Veteran has the mental ability to perform the activities required” to work in a substantially gainful occupation.  Id.   Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is 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; if there are two or more 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).    When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   In pertinent part, the Veteran is service-connected for: (1) prostate cancer, rated 100 percent from March 30, 2010 and 60 percent from August 1, 2015; (2) other specified depressive disorder with anxious distress, rated 30 percent from February 12, 2013; (3) DM, rated at 20 percent from March, 30, 2010; (4) left lower extremity sciatic nerve peripheral neuropathy, rated at 10 percent from February 26, 2013 and 20 percent from September 1, 2015; (5) right lower extremity sciatic nerve peripheral neuropathy, rated at 10 percent from February 26, 2013 and 20 percent from September 1, 2015; (6) left lower extremity femoral nerve peripheral neuropathy, rated at 20 percent from September 2015; (7) right lower extremity femoral nerve peripheral neuropathy, rated at 20 percent from September 2015; (8) tinnitus, rated at 10 percent from March 30, 2010; (9) bilateral hearing loss, rated noncompensable form March 30, 2010; (10) impotence, rated noncompensable from March 30, 2010; (11) bilateral non-proliferative diabetic retinopathy, rated noncompensable from January 2, 2013; (12) umbilical hernia, rated noncompensable from February 26, 2013; (13) scars status post radical prostatectomy, rated noncompensable from February 26, 2013; (14) left trigger thumbs associated with DM, rated noncompensable from September 1, 2015; (15) and right trigger thumbs associated with DM, rated noncompensable from September 1, 2015. The Veteran’s combined evaluation is 100 percent from March 30, 2010, 80 percent from August 2015 and 90 percent from September 1, 2015. The schedular percentage criteria for a TDIU are met. As a preliminary matter, the Board notes that from March 2010 until August 2015, the Veteran was in receipt of a total rating. He was also in receipt of special monthly compensation on account of loss of use of a creative organ from March 30, 2010, and on account of a disability rated 100 percent and an additional service-connected disability independently ratable at 60 percent from February 12, 2013 to August 1, 2015. While a receipt of a total rating may moot the issue of entitlement to a TDIU when a Veteran is already in receipt of SMC based on housebound status, here, the issue is not rendered moot because the Veteran’s SMC was not based on housebound status. 38 U.S.C. § 1114; 38 C.F.R. § 3.350; Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Additionally, the Board notes that on August 28, 2020, the AOJ granted TDIU based upon the Veteran’s service-connected disabilities effective February 12, 2013. However, since, as noted, the appeal period before the Board begins on March 30, 2010, this grant does not represent a total grant of benefits sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the Board will focus its analysis on whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities prior to February 12, 2013. Turning to the evidence of record, the Veteran’s military occupational specialty (MOS) was a jet aircraft mechanic. See DD Form 214. He worked as a log scaler since his separation from active service. See VA 21-8940. Since his retirement, the Veteran has worked part-time (18-20 hours per week) maintaining a local golf course. See January 2014 VA examination for posttraumatic stress disorder (PTSD). With regards to the Veteran’s education level, his education includes one year of college. Id. Based on the fact that the Veteran’s primarily worked in labor-intensive positions, the Board finds that he does not have the proficiency to work in an office-like setting, performing administrative or clerical work. As to the Veteran’s contentions, he asserts that he is unable to work because of his service-connected disabilities. Specifically, he asserts that his DM and incontinence made is nearly impossible to complete assigned tasks. See VA 21-8940. The Veteran underwent a VA examination for his prostate cancer in February 2013. He reported that he worked as a log scaler for 43 years and retired in December 2006. Upon examination, the residuals claimed as due to prostatectomy include erectile dysfunction and a scar. The Veteran also reported urinary incontinence. He reported that bending over causes him to leak urine, he wears a pad all the time and changes it 2-3 times a day. The examiner noted no signs or symptoms of obstructed voiding, no history of recurrent urinary tract or kidney infections, and no other residual conditions and/or complications due to prostate cancer or related treatment. Umbilical hernia and scars were noted. The examiner concluded that the Veteran’s male reproductive system condition does not impact his ability to work but noted that his urinary incontinence limits his functional abilities. As to his umbilical hernia, the examiner noted that the Veteran limits his lifting to avoid having his hernia protrude outward. The examiner noted that his hernia impacts his ability to work. The Board notes that the Veteran’s hernia is rated noncompensable and he is not service connected for urinary incontinence. A February 2013 VA DM examination report shows that the Veteran reported numbness and tingling in his feet. The examination revealed moderate numbness and paresthesias and/or dysesthesias in lower extremities. Muscle strength and reflexes were noted as normal. Light touch/monofilament and sensation test results revealed decreased sensitivity in toes bilaterally. Diabetic peripheral neuropathy and retinopathy were noted. The examiner concluded that the Veteran’s DM does not impact his ability to work. The Board notes that the Veteran’s current rating for DM and pertinent medical records reflect that regulation of activities is not required to control his disability. The Board also notes that the Veteran’s retinopathy is rated noncompensable. During the same examination, sciatic nerve neuropathy was noted to result in moderate incomplete paralysis. Femoral nerve was noted as normal. The Veteran reported that prolonged sitting brings out his symptoms and distracts him from cognitive work. He also reported having difficulties with walking on uneven surfaces. The examiner concluded that the Veteran’s peripheral neuropathy impacts his ability to work. In February 2013, the Veteran also underwent a VA examination for his hearing loss and tinnitus. The Veteran reported that his hearing loss makes it difficult to hear conversations and television. The examiner concluded that the Veteran’s hearing loss impacts his ability to work but his tinnitus does not. The Board observes that the Veteran’s current rating for hearing loss is noncompensable. The Board finds the VA medical opinions to be highly probative. The opinions were rendered by specialists in their field. Additionally, when rendering the opinion, the examiners reviewed the record including the Veteran’s subjective complaints and objective findings. The examiners also provided reasons to support their opinions, which are consistent with the other objective evidence of record. See VA treatment records. In light of the foregoing, the Board finds that the Veteran’s service-connected disabilities did not preclude him from being able to secure and maintain substantially gainful employment prior to February 12, 2013. While it is clear that the Veteran likely had some difficulties with functioning in a role requiring lifting and prolonged sitting, the Veteran was not precluded from performing a position where these tasks were not required. Upon review of the evidence of record, the Board finds that any accommodations afforded by a prospective employer that would have allowed the Veteran to take frequent breaks or move around would have been reasonable, not extraordinary. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) (“Where a claimant’s employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”). Further, the sole fact that a claimant has difficulty with certain tasks is not enough. The Veteran’s disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran’s service-connected disabilities alone affected his occupational functioning to the point of rendering him unemployable. See Hatlestad, supra. As explained above, the Board finds that the Veteran’s service-connected disabilities alone did not preclude him from securing or maintaining substantially gainful employment prior to February 12, 2013. The Board also notes that the Veteran was not found to be precluded from obtaining and/or maintaining employment due to his service-connected disabilities during the period on appeal. Indeed, the February 2013 VA examiners found that the Veteran’s bilateral hearing, hernia, urinary incontinence, and peripheral neuropathy impact his ability to work, but the examiners did not find that his occupational functioning is completely precluded due to such conditions. The Board acknowledges the Veteran’s statements that he is unable to maintain employment because of his urinary incontinence. See February 2013 prostate cancer VA examination. However, the Board notes that the Veteran could wear pads which he changed 2-3 times a day. In addition, the February 2013 examiner noted no history of recurrent urinary tract or kidney infections, and no other residual conditions and/or complications due to prostate cancer or related treatment. The examiner also noted the urinary incontinence limits on his functional abilities but concluded that the Veteran’s male reproductive system condition does not completely preclude him from working. The Board also acknowledges the fact that the Veteran’s part-time job at a golf course constituted marginal employment, as he was only working 18-20 hours per week. See January 2014 VA PTSD examination. However, the evidence does not show that he was capable of marginal employment only. See Ortiz-Valles, supra; Ray, supra. When analyzing whether a TDIU is warranted, the Board considers whether the Veteran has the potential to earn more than marginal income and his employment history, education, skill, and training. Id. As noted, the evidence of record does not indicate that the Veteran’s service-connected disabilities precluded him from working full-time with the same or another employer. In sum, while the Veteran experienced symptoms related to his service-connected disabilities prior to February 12, 2013, the evidence does not show that the Veteran was unemployable due to his service-connected disabilities. The preponderance of the evidence is against the claim for a TDIU. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, entitlement to a TDIU prior to February 12, 2013, is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, Associate 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.