Citation Nr: 21025283 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 12-22 081 DATE: April 27, 2021 ORDER Entitlement to a rating more than 10 percent for diabetes mellitus type II for the period prior to November 18, 2016 is denied. Entitlement to a rating more than 20 percent for diabetes mellitus type II for the period after November 18, 2016 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. For the period prior to November 18, 2016, the preponderance of the evidence demonstrates that the Veteran’s diabetes mellitus type II was managed by restricted diet only. 2. For the period after November 18. 2016, the preponderance of the evidence demonstrates that the Veteran’s diabetes mellitus type II has not required regulation of activities (avoidance of strenuous occupational and recreational activities). 3. The Veteran’s service-connected disabilities currently meet the percentage requirements for the award of a TDIU, and the evidence demonstrates that it is at least as likely as not that he is as likely as not unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating more than 10 percent for diabetes mellitus type II for the period prior to November 18, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2019). 2. The criteria for entitlement to a rating more than 20 percent for diabetes mellitus type II for the period after November 18, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970 and in January 1991. In October 2015, the Veteran testified at a Travel Board hearing at the Regional Office (RO) in St. Petersburg, Florida before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In February 2016, the Board remanded the issues of entitlement to an initial rating in excess of 10 percent for anxiety disorder and entitlement to a TDIU for additional evidentiary development. The Board also granted entitlement to service connection for diabetes mellitus type II. In October 2017, the Board, in pertinent part, remanded the issue of entitlement to a TDIU for additional evidentiary development. In that decision, the Board noted that the Veteran had filed an appeal for a rating of more than 10 percent for his diabetes mellitus type II, but the issue was still being processed by the RO. During development, an April 2018 rating decision increased the Veteran’s diabetes mellitus type II to 20 percent, effective November 18, 2016. A 10 percent rating for diabetic peripheral neuropathy of the bilateral lower extremities was also assigned. The appeal as to the increased rating for diabetes mellitus type II and the claim for a TDIU was subsequently merged into the current appeal. In January 2019, the Board granted entitlement to ratings of 30 percent for diabetic peripheral neuropathy of the bilateral lower extremities and remanded the appeal with respect to the remaining issues for evidentiary development. It has since been returned to the Board for further consideration. Increased Rating 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating more than 10 percent for diabetes mellitus type II for the period prior to November 18, 2016 2. Entitlement to a rating more than 20 percent for diabetes mellitus type II for the period after November 18, 2016 As discussed above, the Veteran’s diabetes mellitus type II has resulted in staged ratings of 10 percent for the period prior to November 18, 2016, and 20 percent thereafter. The Veteran seeks increased ratings for the entire period on appeal. Under Diagnostic Code 7913, which specifically addresses evaluation of diabetes mellitus, a 10 percent evaluation is assigned where diabetes requires a restricted diet only. A rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires 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 100 percent rating is warranted when the diabetes 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 separately evaluated. Id. Relevant to this appeal, the criteria for rating diabetes are “successive.” Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 363. Medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words, a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21 (2019), those regulations do not apply where the rating schedule establishes successive criteria. The criteria for 60 and 100 percent ratings require “regulation of activities.” See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The Board observes that the Veteran underwent a VA examination in January 2010, wherein the examiner stated that there is insufficient evidence to establish a diagnosis of diabetes mellitus. A subsequent September 2012 VA examination diagnosed the Veteran with impaired fasting glucose, but not diabetes mellitus. As discussed previously, service connection for diabetes mellitus type II was later granted by the Board in February 2016. It was stated that private treatment records documented the diagnosis of diet-controlled diabetes mellitus in March 2011. VA outpatient treatment records from 2014 to 2015 also reflected a diagnosis of diabetes mellitus under diet control. The Veteran underwent a VA diabetes mellitus examination in April 2016. The examiner determined that while the Veteran’s diabetes mellitus type II requires management by a restricted diet, his treatment does not require the regulation of his activities or prescription medication. The Board acknowledges that the Veteran has received both VA and private treatment for his diabetes mellitus type II. Private treatment records from Dr. Brown show that the Veteran was managing his condition with a restricted diet until November 2016. The records are negative for evidence showing episodes of ketoacidosis resulting in hospitalization. An undated record received November 18, 2016 from Dr. Brown shows metformin has been prescribed for the Veteran’s diabetes (which resulted in an increased 20 percent rating as of that date). It does not appear that medication was prescribed for the Veteran’s diabetes mellitus type II prior to this date. Subsequent records dated December 20, 2016 to March 2018 show non-VA prescription metformin is used to treat the Veteran’s diabetes mellitus type II. Pursuant to the Board’s January 2019 remand, the Veteran received another VA diabetes mellitus examination in March 2020. The examiner determined that while the Veteran requires an oral hypoglycemic agent and a restricted diet to treat his diabetes, his treatment does not require the regulation of his activities. Diabetic care was noted to be less than two times per month and no episodes of ketoacidosis or hypoglycemia were reported. Diabetic peripheral neuropathy and erectile dysfunction were listed as complications of his service-connected diabetes mellitus type II (for which service connection is now in effect). Based on the medical evidence of record, a 10 percent evaluation better approximates the Veteran’s symptoms for the period prior to November 18, 2016. Although the Veteran treated his diabetes mellitus with a restricted diet, there is no evidence of insulin or an oral hypoglycemic use coupled with a restricted diet to warrant an increased evaluation of 20 percent. The Board emphasizes that the treatment report from Dr. Brown that was received on November 18, 2016 is the first instance which documents that medication has been prescribed for the Veteran’s diabetes mellitus type II. Although another report from Dr. Brown dated February 2020 suggests that regulation of activities is required, the overall evidence and treatment reports do not indicate that the Veteran’s condition requires measures to control and regulate the activities of a patient in order to help control and stabilize blood sugar levels. Likewise, the Board finds that the Veteran’s diabetes mellitus does not warrant a 40 percent rating or higher for the period after November 18, 2016. There is no medical evidence indicating that a medical provider advised the Veteran to restrict his activities in any way for the purpose of treating his diabetes. In fact, the VA examiners discussed above all noted that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus type II. To summarize, the Veteran requires oral medication, but does not require regulation of his activities due to his diabetes. Although the Veteran takes numerous medications, the rating criteria does not provide for higher evaluations based on the number of medications. Rather, the rating criteria require that the Veteran’s activity have restrictions as a result of his diabetes to consider a higher evaluation. Here, the evidence does not demonstrate that the Veteran’s diabetes mellitus has reached the level of severity necessary for a 40 percent rating. Therefore, the Board finds that the Veteran’s diabetes mellitus type II is no more than 20 percent disabling. Further, the Veteran has been separately rated for diabetic peripheral neuropathy of the bilateral upper and lower extremities along with erectile dysfunction. Additionally, the Veteran has been awarded special monthly compensation for the loss of use of a creative organ. There is no other separately ratable impairment which has been clinically established that would warrant a compensable rating at this time. Therefore, the Board finds that the preponderance of the evidence is against a rating more than 10 percent for diabetes mellitus type II prior to November 18, 2016 and in excess of 20 percent thereafter. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher evaluation, that doctrine is not applicable. 38 U.S.C. § 5107. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, 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). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Service connection is currently in effect for the following disabilities: anxiety disorder (30 percent); diabetic peripheral neuropathy of left lower extremity (30 percent); diabetic peripheral neuropathy of right lower extremity (30 percent); diabetes mellitus type II (20 percent); diabetic peripheral neuropathy of left upper extremity (20 percent); diabetic peripheral neuropathy of right upper extremity (20 percent); and erectile dysfunction (noncompensable). Notably, the Veteran’s service-connected disabilities (with the exception of anxiety disorder and erectile dysfunction) all affect the nervous system, so they can be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). With such consideration, he meets the schedular criteria for a TDIU. He has had a combined 90 percent rating, largely for diabetes and related nervous system impairment since February 2020. A combined 80 percent rating had been assigned from January 2018. What remains to be determined is whether the Veteran’s service-connected disabilities render him unemployable for the applicable period. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). According to the Veteran’s June 2010 VA Form 21-8940, he retired from the federal police force in December 2006. He reported later work as a car courier. He did not report any education after high school. The Veteran remarked that he became increasingly anxious due to disrupted sleep and became fatigued, which caused him to have difficulty concentrating and to become agitated by coworkers. The Board notes that employment information shows that he retired from the federal police force in early January 2007 and that he did not report any concessions due to disability. The Veteran also confirmed his work history at the October 2015 Board hearing and testified that he had trouble getting along with his coworkers and suffered from a lack of concentration. The Board notes that VA examiners have consistently described the Veteran’s work history, including a long career as a federal police officer and a later brief stint as a car courier. In fact, the September 2012 VA examiner found that the Veteran’s anxiety disorder does not preclude employment in physical or sedentary tasks. Notably, at an April 2016 examination, he reported that he left his job as a car courier after 2 months because he felt that others had a poor work ethic. Also of record are a number of reports from his private providers, as well his VA social worker. These reports are of the opinion that the Veteran’s anxiety disorder impacts his employability. Specifically, the February 2013 report from P. Salzer, LCSW, suggests that the Veteran “would not be able to work with others without distractions … or exhibiting behavioral extremes.” Also significant is Dr. Rubin’s January 2013 report, where it was noted that “[the Veteran’s] present psychological condition would preclude employment at this time and he should be considered as having a permanent disability rendering him totally disabled, psychologically from performing full time competitive work in a normal competitive work setting.” The Veteran and his spouse have also stated that his anxiety problems caused him to clash with coworkers and that his job prospects are slim or limited at best. Also, several reports in 2019 from P. Salzer contains similar findings. Importantly, the March 2020 VA examiner provided the following remarks: [The Veteran] is unable to ambulate normally and frequent falls due to his peripheral neuropathy. Unable to balance at times and difficulty with proprioception makes him a fall risk and he has fallen numerous times. Unable to work as construction worker, heavy equipment operator, commercial truck driver, or any other occupation requiring stability and ability to maintain normal gait at all times. Considering the above, the Board finds that it is at least as likely as not that the cumulative effects of the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Thus, the Board finds that the evidence of record reasonably supports the grant of TDIU. Given the Veteran’s limited occupational experience, along with the evidence discussed in the pertinent examinations, his treatment records, his statements regarding employment, and testimony, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran’s service-connected disabilities render him unemployable under the applicable regulations. Further, no VA examiner has commented specifically on the Veteran’s employability when considering the Veteran’s overall disability picture. Given the overall physical assessments, as well as the evidence discussed herein, the evidence seems evenly balanced. As the reasonable doubt created by this approximate balance of the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.