Citation Nr: 21012904 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 09-35 735 DATE: March 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type-II (DM), on an extraschedular basis only, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities, on an extraschedular basis, is denied. FINDINGS OF FACT 1. Consideration of an extraschedular rating for service-connected diabetes mellitus, type II based on collective impact under 38 C.F.R. § 3.321(b) is no longer available to the Veteran as a matter of law. 2. The Veteran’s diabetes mellitus has not been shown to be so exceptional or unusual, with such related factors as marked interference with employment or repeated 3. The Veteran’s service-connected disability does not render him unable to secure and follow substantially gainful employment at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for referral for extraschedular consideration for a rating in excess of 20 percent for diabetes mellitus type-II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321. 2. The criteria for entitlement to a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1971. The Veteran also served in Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2014, February 2016, September 2017, and December 2018, all of which were remanded for additional development. In its February 2016 decision, the Board bifurcated the Veteran’s increased rating claim for the service-connected diabetes mellitus, and denied an increased rating on a schedular basis, and remanded for extra-schedular consideration only. In August 2020, the RO requested an administrative review from the Director of Compensation Service regarding the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The requested advisory opinion was issued in October 2020. The RO then readjudicated the issue on appeal in an April 2020 Supplemental Statement of the Case (SSOC). As the actions specified in the most recent remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that it previously remanded the Veteran’s claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, for additional development. In an August 2020 rating decision, the RO granted service connection for hypertension with a non-compensable evaluation, effective March 3, 2008. As this represents a full grant of the benefit sought, this issue is no longer before the Board. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus Type-II, on an extraschedular basis only The Veteran contends that an extraschedular evaluation for his DM, currently rated as 20 percent disabling pursuant to Diagnostic Code 7913, is warranted. An extraschedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Director of the VA's Compensation and Pension Service is authorized to approve, on the basis of the above criteria, an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The Board does not have the authority to grant an extraschedular rating in the first instance; rather, the Board must decide whether the matter should be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically adjudicate whether to refer a case for extraschedular consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). In the most December 2018 remand, the Board, in pertinent part, requested to the RO to determine if referral was warranted for the issue of "[e]xtraschedular consideration of the Veteran's increased rating claim pursuant to 38 C.F.R. § 3.321 (b)(1) and based on the collective impact of the Veteran's service-connected disabilities on his disability picture and whether it renders the schedular evaluations inadequate in accordance with the decision in Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014)" to the Director of Compensation Service. However, in December 2017, VA issued a Final Rule, effective January 8, 2018, amending 38 C.F.R. § 3.321(b) and abrogating the holding in Johnson by eliminating extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities. See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57830 (Dec. 8, 2007). More recently, in September 2018, the Court issued a panel decision holding that VA's revision to 38 C.F.R. § 3.321 (b) eliminating extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities did not have an impermissible retroactive effect and applied to all cases pending before VA and the Court on the effective date of the final rule. See Thurlow v. Wilkie, 30 Vet. App. 231 (2018). Thus, the December 2017 rule applies to all applications for benefits that were pending before VA on January 8, 2018, which includes this appeal. In light of the foregoing, an extraschedular rating for the Veteran's diabetes mellitus disability based on the collective impact of his service-connected disabilities is no longer available as a matter of law. As for the issue of entitlement to an increased rating for diabetes mellitus, on an extraschedular basis, based solely on the single disability of DM, the Board finds that the preponderance of the evidence supports that the schedular rating criteria is adequate to describe the Veteran's disability level and symptomatology. In this regard, pursuant to Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), if (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether an extraschedular rating is warranted. Id. In this case, the medical evidence did not show, nor did the Veteran identify any unique or unusual symptoms of his diabetes and related complications that were not contemplated by schedular Diagnostic Codes. Throughout the period on appeal, the Veteran has maintained that his DM and associated DPN result in an unusual disability picture that is not contemplated by the schedular criteria. VA treatment records from the period on appeal generally reflect ongoing treatment for DM. Treatment notes document that the Veteran remained on insulin and oral hypoglycemic agents for treatment of DM, and on a restricted diet. No regulation of activities is required, and no episodes of keto acidosis or hypoglycemia required hospitalization. An August 2008 VA examination report noted that the Veteran was noncompliant with his diet. He was taking oral medication and insulin for his DM. The examiner noted no reports of restricted activities, keto acidosis or hypoglycemic episodes and no hospitalizations. In an October 2008 statement the Veteran reported that he has restricted activities due to his DM. In an August 2009 statement the Veteran contended that he takes medication along with two insulin shots daily, and that he was on restricted diet and activities due to his DM. A June 2012 VA treatment note reflects one episode of hypoglycemia and that the Veteran “took OJ” and felt better. In September 2014, the Veteran underwent another VA examination for DM. The examiner noted that the Veteran was taking oral hypoglycemic agents and insulin but required no regulation of activities. The examiner noted no episodes of ketoacidosis in the prior 12 months and no hospitalizations for ketoacidosis or hypoglycemic reactions. The examiner noted the Veteran’s DPN as a complication of his DM. The examiner noted that neither the Veteran’s DM, nor its associated complications, impacted his ability to work. In December 2019 the Veteran underwent an additional VA exam for his DM. The Veteran’s DM was managed with hypoglycemic agents and twice daily insulin injections. The Veteran had no hospitalizations for episodes of ketoacidosis or hypoglycemic reactions for the prior 12 months. The examiner noted DPN as a complication of the Veteran’s DM. The examiner noted two episodes in April 2010 and June 2015 where the Veteran’s A1C was 6.5% or greater. In sum, the September 2014 VA examination report for DPN noted no functional impairment. The September 2014 examiner noted minimal functional impairment caused by the Veteran’s DM. A July 2018 DPN VA examination report notes functional impairment in the form of limited balancing on feet and prolonged walking. November 2019 and December 2019 VA exams noted no functional impact caused by the Veteran’s DM, or DPN. The Board has carefully compared the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule, and has determined that the Veteran's reported symptoms do not present an exceptional or unusual disability picture. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which his disability is rated, and further analysis under Thun is not necessary. See Thun, 22 Vet. App. at 111. The RO considered the Board’s request for a determination if referral for extra-schedular consideration was warranted and provided the Veteran with an additional VA examination in December 2019. However, even after undergoing additional examination, there is nothing exceptional or unusual about the Veteran’s diabetes mellitus. Consequently, referral for extraschedular consideration is not warranted. In sum, the evidence does not present an exceptional disability picture that would result in finding that the Veteran's 20 percent schedular rating for DM is inadequate. Further, the Veteran's disability picture does not exhibit other related factors, such as marked interference with employment. In short, there is nothing exceptional or unusual about the Veteran's diabetes mellitus because the rating criteria reasonably describe his disability level and symptomatology throughout the periods on appeal. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted. TDIU TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided 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). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). "Substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 2. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. The Veteran contends that his service-connected diabetes-mellitus type-II (DM), bilateral peripheral neuropathy (BPN) and hypertension prevent him from securing or following any substantially gainful occupation. The Veteran contends that entitlement to a TDIU is warranted because the disabilities caused him to leave his job and his service-connected disabilities prevent him from working. The Veteran is service connected for diabetes mellitus type II evaluated at 20 percent effective September 23, 2002; left lower extremity diabetic polyneuropathy evaluated at 10 percent effective April 2, 2010 and 20 percent effective June 15, 2018; right lower extremity diabetic polyneuropathy evaluated at 10 percent effective April 2, 2010 and 20 percent effective June 15, 2018; tinnitus evaluated at 10 percent effective February22, 2008; bilateral hearing loss evaluated at 0 percent effective February22, 2008 and hypertension evaluated at 0 percent effective March 4, 2008. The overall combined evaluations are 20 percent effective September23, 2002, 30 percent effective February22, 2008, 40 percent effective April 2, 2010 and 60 percent effective June 15, 2018. As such, the Veteran's disability evaluations do not meet the percentage requirements for entitlement to a TDIU on a schedular basis. While the Veteran does not meet the schedular criteria for a TDIU, 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(b). Rating boards should refer to the Director of the Compensation and Pension Service (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran's claim was referred to the Director in August 2020. In October 2020, the Director of Compensation Service (Director) issued an advisory opinion finding that the overall evidence failed to support the contention that any of the service-connected disability or a combination of the effects of those disabilities prevented employment. Entitlement to extraschedular TDIU benefits was not established by the Director. Accordingly, the issue of entitlement to a TDIU on an extraschedular basis is properly before the Board at this time. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. The evidence of record shows that the Veteran worked for 21 years as an HVAC technician. The Veteran last worked full-time in July 2007. In a February 2008 statement, the Veteran contended that he was laid off from his job of over 20 years and could not find anything else, especially in his field, because of his knees. The Veteran wrote that he has two knee replacements due to his diabetes. In July 2009, the Veteran’s former employer wrote a letter detailing the Veteran’s work history of 21 years, that he was very loyal, punctual, and rarely missed a day of work. The employer wrote that the Veteran had been dealing with his diabetic problems for several years which resorted in two knee replacements. The employer tried to maintain the Veteran’s employment but “he just couldn’t perform his duties any longer,” so the employer had to let him go. In August 2008, the Veteran underwent a VA examination for DM. The examiner noted that the Veteran quit his job working as a supervisor for an air and heating business in July 2007 because he cannot kneel on his knees and has back pain which prevents him from performing his job. The Veteran reported swimming three times per week for exercise. He also did household chores, pool maintenance and yard work. The Veteran was taking oral medication and insulin for his DM. The examiner noted no reports of restricted activities, hypoglycemic keto acidotic episodes, or hospitalizations associated with the Veteran’s DM. VA treatment records from the period on appeal generally reflect ongoing treatment for DM. Treatment notes document that the Veteran remained on insulin and oral hypoglycemic agents for treatment of DM, and a restricted diet. No regulation of activities was noted and no episodes of keto acidosis or hypoglycemia or hospitalizations. In a February 2014 statement from the Veteran’s representative in support of a TDIU for the Veteran, he argued that the Veteran has only worked in HVAC installation and repair since service and has no other training or education after high school other than from the Army as a deck hand. In September 2014, the Veteran underwent VA examinations for hypertension, DPN, DM, and hearing loss. The examiner noted no functional impairment caused by the Veteran’s hypertension and neuropathy, but noted functional impairment caused by the Veteran’s hearing loss, with the Veteran reporting that his “wife says [he doesn’t] hear her.” The examiner also noted minimal functional impairment caused by the Veteran’s DM. In a July 2018 VA examination report, the examiner noted that the Veteran’s DPN impacted his ability to work because the Veteran had significant lower extremity peripheral neuropathy which limits balancing on feet and prolonged walking. January and June 2019 VA home telehealth notes document that the Veteran’s spouse is serving as his unpaid caregiver. She performs housework, does the shopping, and prepares meals. The Veteran did not need help with dressing, eating, using the bathroom, moving around in bed, transfers, or with moving around indoors. A November 2019 hypertension VA exam revealed no functional impact. December 2019 DM and DPN VA exams noted no functional impact caused by the Veteran’s disabilities. In August 2020, per the Board’s remand directives, the RO referred the Veteran’s claim for a TDIU to the Director of Compensation Services. In that correspondence the RO recommended denial of a TDIU on an extra-schedular basis after a thorough review of the Veteran’s claims file. In summary, the competent lay and medical evidence of record reflects some occupational limitations due to the Veteran’s service-connected disabilities, not an inability to secure and maintain substantially gainful employment consistent with the Veteran’s education and occupational experience. While his hearing loss has impacted his ability to hear his wife, and DPN has been found to limit his ability to balance on his feet or stand for prolonged periods of time, neither these impairments, nor the Veteran’s other service-connect disabilities preclude the Veteran from functioning in a different type of work environment that is less noisy, or in a job that doesn’t require constant balancing/prolonged periods of standing. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevented him from securing or following any substantially gainful employment, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. The Board therefore concludes that the criteria for a TDIU on an extraschedular basis have not been met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.