Citation Nr: 21012369 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-27 562A DATE: March 4, 2021 ORDER Entitlement to an increased rating for service-connected diabetes mellitus on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), prior to June 12, 2019, is denied. FINDING OF FACT Although the evidence of the record shows some hospitalizations and disruption of the ability to work in a job involving MRI related tasks due to metal sensors placed in the Veteran’s body for monitoring his service-connected diabetes mellitus condition, the rating schedule for the endocrine system as a whole is capable of assessing the Veteran’s alleged symptomatology. CONCLUSION OF LAW The criteria for an entitlement to an increased rating for service-connected diabetes mellitus on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), prior to June 12, 2019, have not been met. 38 C.F.R. §§ 3.321, 3.102, 3.159, 4.1, 4.7, 4.21, 4.27, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1996 to June 1997. He testified before the undersigned Veterans Law Judge during a December 2018 video conference hearing and a transcript is of record. Initially, the Board notes that during the pendency of the appeal period, the Veteran was granted entitlement to a total disability rating due to individual unemployability (TDIU), effective October 2, 2011, pursuant to a November 2020 rating decision. This was a total grant of benefits sought on appeal, as the TDIU claim was part of the appeal for an increase for the diabetes, which was filed in March 2012. Therefore, there remains no time period on appeal that the TDIU award does not encompass, so the issue is no longer before the Board. The RO also granted service connection for a mental health condition, which had been previously referred by the Board. In September 2020, the Board remanded this matter for the RO to readjudicate the issue on appeal, and to issue a supplemental statement of the case (SSOC) if the benefit sought on appeal was not granted. The Board also requested the RO expressly consider whether referral to the Director of the Compensation Service is warranted for entitlement to an increased rating for diabetes on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) per the Veteran’s attorney’s contention made during the December 2018 Board hearing. The Board finds that there has been substantial compliance with the Board remand directive as the RO determined referral was not warranted and issued a SSOC thereafter addressing this issue. Stegall v. West, 11 Vet. App. 268 (1998). Additional VA treatment records and examinations have been associated with the Veteran’s claims file since the issuance of the November 2020 Supplemental Statement of the Case. However, the Board finds that a waiver of the RO’s initial consideration is not required, as they are not pertinent to the issue on appeal—the VA examinations concern completely unrelated conditions, and the VA treatment records merely list diabetes as active problem and relay the past medical history already documented in the VA treatment records that have been previously associated with the claims file. Furthermore, this issue is limited to the time period prior to June 2019, and the new evidence is not relevant to that time period. Neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. 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). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. The Board has thoroughly reviewed all the evidence in the Veteran’s VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. During the Board hearing, the Veteran’s attorney raised that extraschedular consideration is warranted pursuant to 38 C.F.R. § 3.321(b)(1)—specifically, that despite having gone to a school for MRI imaging, the Veteran has not been able to do any related work due having installed metal sensors in his body for monitoring his diabetes mellitus condition, and that if he were to stand next to an MRI machine, it would “rip [metal sensors] out of [his] skin.” An extraschedular disability rating is warranted when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Both elements must be satisfied to warrant extraschedular referral. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). As noted earlier, the RO found that an extraschedular referral is not warranted, even after acknowledging the evidence of record showing trouble managing blood glucose levels, some hospitalizations, and an opinion indicating diabetes mellitus impacting his availability to work. See November 2020 SSOC. The RO did not deviate from the Board’s Remand instructions, as the Board did not explicitly order the RO to obtain an extraschedular opinion from the Director of Compensation Services, but instead only instructed the RO to consider whether such referral was warranted in this case. The RO decided referral was not warranted, also noting that the Veteran had been granted TDIU so no additional benefit would be gained by any extraschedular rating. Regardless, the Board will provide its own analysis as to why a referral for an extraschedular consideration is not warranted. Recently, the United States Court of Appeals for Veterans Claims (CAVC) issued an en banc decision in Long v. Wilkie, No. 16-1537, which provided, in part, six non-exhaustive or mandatory guiding principles to facilitate proper analysis of Thun’s first step. First, the sole focus of Thun’s first step is on the ability of the rating schedule to evaluate the veteran’s symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun’s first step deals exclusively with whether the veteran’s symptoms (interchangeably referred to by the CAVC as “functional impairments”) are exceptional, whereas Thun’s second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, such as is the case for psychiatric conditions without a valid DSM-5 diagnosis, see Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the Veteran or reasonably raised by the record. Sixth, in reviewing the Board’s analysis of referral for extraschedular consideration, the CAVC will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. In this case, although the Board is cognizant of the evidence showing some hospitalizations (averaging about one or two a year, see i.e., November 2017 VA treatment records, revealing one-time episode of hospitalization per year due to hypoglycemia in 2013, 2014, 2015; see August 2012 VA examination)) and disruption of the ability to work in a job involving MRI related tasks due to the metal sensors in the Veteran’s body for monitoring the service-connected diabetes mellitus condition (see Board hearing testimony), the Board points out that the rating schedule for endocrine system conditions as a whole is capable of assessing the Veteran’s alleged symptomatology—and that for this reason, the Board finds referral for extraschedular consideration is not warranted. Notably, these alleged symptoms are already adequately described and contemplated by the rating criteria/schedule (see i.e., DC 7913, regulation of activities (avoidance of strenuous occupational activities) and frequent hospitalizations)) under which the Veteran is rated. The rating schedule as a whole is meant to compensate for occupational impairment, so the 60 percent rating contemplates restriction of activities, arguably encompassing occupational activities, due to the severity of the diabetes, as well as the impact frequent hospitalizations would have on a person’s ability to work. While the specific rating criteria under the diagnostic code do not mention metal sensors, the functional effects of those sensors – the impairment on daily and occupational activities – is contemplated by the rating schedule, as a whole. See Long. Thun’s first step is not met simply because the metal sensors are not considered in the rating criteria for diabetes; rather, it is met when the impairment cannot be evaluated by the rating schedule. Id. Here, that impairment is evaluated for the reasons given above. Thus, even acknowledging the evidence suggestive of functional effects of that impairment (i.e. Thun’s second step), to the extent that the Thun’s first step has not been met, the Board regrettably finds that extraschedular consideration is not warranted for the Veteran’s service-connected diabetes mellitus condition. Consequently, the benefit-of-the-doubt rule does not apply, and extraschedular referral is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.