Citation Nr: 21016220 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 05-24 806 DATE: March 22, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent prior to January 15, 2020 and in excess of 40 percent thereafter for diabetes mellitus type II (diabetes), is denied. For the appeal period from October 1, 2007 to July 8, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is granted. FINDINGS OF FACT 1. Prior to January 15, 2020, the Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin / an oral glycemic agent during the period on appeal. 2. After January 15, 2020, the Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, and did not have complications that would not be compensable if separately evaluated. 3. With resolution of the doubt in his favor, the Veteran’s service-connected disabilities rendered him unemployable from October 1, 2007 to July 8, 2012; the Veteran is already in receipt of a TDIU beginning July 9, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 20 percent prior to January 15, 2020, and in excess of 40 percent thereafter for diabetes mellitus type II (diabetes), have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2020). 2. For the appeal period from October 1, 2007 to July 8, 2012, the criteria for a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1965 to August 1967. This matter originally came before the Board of Veteran’s Appeals (Board) from a February 2003 rating decision that granted service connection for diabetes with an initial disability rating of 20 percent, and an October 2016 rating decision that granted a TDIU, issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a December 2010 decision, the Board denied the Veteran a higher initial rating for diabetes. He appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a February 2012 Order, the Court granted a Joint Motion for Remand (JMR), setting aside the Board’s decision and remanding the Veteran’s claim. In September 2012, the Board remanded the Veteran’s claim for additional development consistent with the terms of the JMR, including an inferred TDIU claim. In a July 2017 decision, the Board once again denied an initial disability rating in excess of 20 percent for diabetes. The Veteran once again appealed the Board’s decision to Court, and in an April 2019 Order the Court granted a JMR to vacate the Board’s July 2017 decision and remanding the Veteran’s claim for additional development consistent with the terms of the JMR. In August 2019, the Board remanded the Veteran’s claim for additional development consistent with the terms of the JMR. The matter returned to the Board in November 2020, when the Board determined that additional development was needed, and remanded the issues. The Board finds that its November 2020 remand directives have been substantially complied with, and the matter is properly again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Claim for Diabetes Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are 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. 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 for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks an initial disability rating in excess of 20 percent prior to January 15, 2020 and a disability rating in excess of 40 percent thereafter for his diabetes disability. The Veteran’s diabetes disability is rated under diagnostic code (DC) 7913. The Veteran has been assigned a 20 percent rating for diabetes effective June 2001 and a 40 percent rating from January 15, 2020. Effective December 10, 2017, VA revised the portion of the Rating Schedule that addresses endocrine conditions and disorders of the endocrine system. See 82 Fed. Reg. 50802 - 50807 (November 2, 2017) (codified at 38 C.F.R. pt. 4). The effect of this action is to ensure that VA's Schedule for Rating Disabilities uses current medical terminology and to provide detailed and updated criteria for evaluation of endocrine disorders. Id. at 50802. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. Under Diagnostic Code 7913, the above revision adds the phrase "one or more daily injection of" before the word "insulin." The revisions are clarifying in nature. Thus, under the revised criteria, a rating of 10 percent is assigned for diabetes mellitus that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes mellitus requiring one or more daily injection of insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted for diabetes mellitus requiring one or more daily injection of 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 maximum 100 percent rating is warranted if diabetes mellitus requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119 (December 10, 2017). Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) to Diagnostic Code 7913 provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913) (defining the term within the criteria for a 100 percent rating)). In paragraph 16.5 of the VA Clinician's Guide, it states that an evaluation of diabetes mellitus must "[i]include any restrictions of diet or physical activities and any weight loss." U.S. Veterans Clinician's Guide, Ch. 16, para. 16.5. Accordingly, any "regulation of activities" is a matter that is to be included in the physician's assessment of a claimant seeking VA disability compensation. See 61 Fed. Reg. at 20444. This question turns on whether there is medical evidence of record that supports a finding that the claimant has been instructed to avoid "strenuous occupational and recreational activities." See Camacho, 21 Vet. App. at 364. In addition, the Federal Circuit Court has held that the "insulin" treatment requirement of Diagnostic Code 7913 is not satisfied by use of a different treatment, even one that causes the body to produce insulin. Middleton v. Shinseki, 727 F.3d 1172, 1176 (Fed. Cir. 2013). In other words, insulin cannot be substituted by the administration of another medical compound or pharmaceutical agent. Id. Moreover, "[r]equiring insulin" means that a Veteran must actually be administered insulin. Id. at 1177. In July 2020, the Veteran was administered a Diabetes Disability Benefits Questionnaire (DBQ) for diabetes pursuant to a previous August 2019 Board remand. The examiner noted the Veteran’s diabetes was managed by a restricted diet, a prescribed oral hypoglycemic agent and with insulin injections required more than once a day. In this examination, the examiner also noted the Veteran required regulation of activities as part of the medical management for his condition as the Veteran reported he had to quit his job at the age of 62 due to his diabetes. See Diabetes DBQ dated July 2020. This notation is unclear as to whether the Veteran was encouraged by his physicians to retire in order to avoid strenuous activities and when exactly did the regulation of activities start. The Board remanded the issue in November 2020 because the July 2020 examiner’s report was unclear whether the Veteran’s diabetes required avoidance of strenuous occupational and recreational activities, which is how regulation of activities is defined, and the start date of such regulation. An addendum opinion was obtained in December 2020 and reviewed whether the Veteran’s diabetes required regulation of activities as defined by the regulation, as noted above. The examiner reviewed a January 2020 VA examination, VA treatment records, another VA examination dated June 2011, where the examiner stated that the Veteran does not have to restrict activity on account of diabetes. The examiner also noted the correspondence received in November 2012 from the International Union of Operating Engineers that the Veteran retired on February 1, 2007 because of health conditions that prohibited him from performing any assigned work, as well as another correspondence received in September 2014 from the International Union of Operation Engineers that the Veteran had two minor accidents because he became delirious and blacked out due to his severe medical conditions, and that he no longer had the physical ability to work. The Veteran did not provide any additional medical evidence to show restriction of occupational and recreational activities. Based on the foregoing, as there is no evidence that a physician or any other medical practitioner recommended that the Veteran avoid strenuous occupational and recreational activities as a part of management of diabetes, the examiner provided a negative opinion. As the evidence of record does not show evidence of regulation of activities prior to the January 2020 VA examination, a higher initial rating of 40 percent is not warranted prior to January 15, 2020, and as 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 are not shown after January 15, 2020, a higher 60 percent rating is not warranted after January 15, 2020. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. TDIU from October 1, 2007 to July 8, 2012 The Veteran is currently in receipt of a TDIU beginning July 9, 2012. He seeks a TDIU for the appeal period prior to July 8, 2012, to include on an extraschedular basis. It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (a). A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a veteran meets the schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. Id. If a veteran does not meet the schedular requirements for consideration of entitlement to a TDIU, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340 (a), 3.341(a), 4.16(b). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, as stated below, the Director of Compensation denied TDIU on an extraschedular basis. However, the Director’s decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). The law provides that a veteran’s advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, 4 Vet. App. at 363. Finally, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider “the effect of combinations of disability” under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The Veteran has indicated that he last worked full time in October 2007. The record indicates that from October 2007 to April 14, 2011, the Veteran did not meet the schedular requirement for TDIU as his combined disability rating was 40 percent. From April 15, 2011 to July 8, 2012, the Veteran had a combined 70 percent evaluation and therefore met the schedular requirement for TDIU. The Veteran contends that he was unable to maintain substantially gainful employment due to his service-connected diabetes and diabetic neuropathy disabilities. The evidence includes a December 2020 opinion from the Director of Compensation. The Director found that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. The Director of Compensation noted that the Veteran last worked for the International Union of Operating Engineers as an operating engineer in 2007 and that he reported being unable to obtain or maintain employment due to diabetes and the secondary disabilities. The Veteran’s service-connected disabilities prior to July 2012, and the Director of Compensation noted that the Veteran was service connected for posttraumatic stress disorder and diabetes with secondary hypertension and peripheral neuropathy. The posttraumatic stress disorder was reported to cause mild impairment to social and occupational functioning. There was also mild overall impairment from the diabetes and diabetic complications due to the need for diet and medication to manage diabetes, and the development of numbness in the feet and hands. The Veteran also reported that the peripheral neuropathy interfered with his ability to continue working as a heavy equipment operator. However, prior to July 2012, the Director of Compensation found that the evidence did not show the service-connected conditions would have caused him be totally impaired or prevented him from engaging in other forms of employment. A request of employment information dated in September 2014 indicated that the Veteran had last worked in 2007. Chronic diabetes was notes as the reason for the Veteran’s retirement/termination. A September 2014 International Union of Operating Engineers also noted that the Veteran, prior to leaving the workforce, had 2 minor accidents and was delirious and blacked out as a result of his medical conditions. It was further noted that the Veteran no longer had the physical ability to work. VA examination reports show that the Veteran’s diabetic neuropathy disabilities, diagnosed in 2005, would interfere with his ability to work. See e. g., July 2014 and January 2020 VA examination reports. The Board will grant a total rating based on the benefit-of-the-doubt doctrine. Therefore, a TDIU, to include on an extraschedular basis is granted from for the appeal period from October 1, 2007 to July 8, 2012. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.